been decided in a recent case that the construction of a telephone line upon a rural highway does not constitute an additional burden for which compensation must be made to the abutting owner.71 In Kentucky it is decided in a recent case that a telephone line upon a public highway is not an additional servitude, which gives the original owner of the land, or those claiming under him, a cause of action.72 71 McCann V. Johnson County Teleph. Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171. The court declared that: "The question, however, is not determinable by the differences between urban and suburban conveniences and necessities, nor by the fact that the fee may be in the adjoining landowner in one instance and the public in the other. It must be decided by the scope and purpose of the highway, and whether, in country or city, it is a means of travel and transportation, a medium of transmission — of intercommunication between the people located in different places. We are aware that there are authorities holding that the telephone is not one of the purposes contemplated when the highway was established; that it is not a highway purpose; and, therefore, that it is an additional burden upon the highway, for which compensation must be made to the adjacent owners. We think, however, that the more liberal view should be taken, which is in keeping with the progress of the times, holding the easement to include the modern methods of travel and communication." Per Johnston, J. Three judges dissented from this conclusion and the following quotation from the dissenting opinion, which cites Joyce on Electric Law, § 321, is especially pertinent and of value: "Much is said about the utility and conven In Louisiana the ience of the telephone, and against any step or decision which would retard progress or prevent the general use of all such modern inventions. All will agree to its superiority over former methods and that its use should not be unjustly hampered; but such considerations do not require that landowners shall make donations of their property for the benefit of private or public interests. The advance of civilization, so much talked of, is desir able, but it would be unjust and is unnecessary to obtain it at the expense of the few. To require telephone companies to pay for property taken for their benefit will not necessarily check progress nor prevent improvements. The law treats the business as public, and authorizes the condemnation of land required for the operation of a telephone system, and provides that highways may be so occupied when compensation has been paid to those owning an estate in the land. If the view taken in the majority opinion is to prevail, every modern method of transporting persons and property, and all means of intercommunication, stationary and movable, may be used on the rural highway." Per Johnston, C. J. 72 Cumberland Teleph. & Teleg. Co. v. Avritt, 27 Ky. Law. R. 394, 85 S. W. 204, wherein it is said: "The telephone takes the place of the private messenger. The trans abutting owner has no fee in the streets or sidewalks in front of his property. They are considered as common property, the entire control of the same being in the State or in political corporations whose existence is derived from the State. So it has been held that an abutting owner cannot complain of the construction of telegraph or telephone lines upon the streets, unless "erected without authority, and if the free use and enjoyment of his premises had been materially obstructed, or his property had been taken or damaged without just compensation." 73 - § 308. Telegraph and telephone Not additional burdenMassachusetts. The principal case relied upon as sustaining the contention that the poles and wires of telegraph and telephone companies do not constitute an additional burden upon the streets and highways, is that of Pierce v. Drew.74 This was an action to restrain the selectmen of the town of Brookline from granting to the American Rapid Telegraph Company a location for its poles and wires in that town. A demurrer to the bill on the ground of want of equity was sustained and the bill dismissed on the ground that the erection of the poles did not constitute an additional servitude. 75 mission of messages by telephone is a business of a public character, which is conducted under public control in the same manner as the carriage of persons or property. The easement of the public is not limited to the particular methods of use in vogue when the easement is acquired, but includes improved methods which the progress of society finds necessary for business. The public easement in a highway is not confined to the transportation of persons or things in vehicles." Per Hobson, J. But see § 300, herein. 73 Irwin V. Great Southern Teleph. Co., 37 La. Ann. 63, 1 Am. Elec. Cas. 709, per Bermudez, C. J. This was an action brought for the removal of a pole. 74 136 Mass. 75, 1 Am. Elec. Cas. 571. 75" When land has been taken or granted for highways, it is so taken or granted for the passing and repassing of travelers thereon, whether on foot or horseback, or with carriages and teams for the transportation and conveyance of passengers and property, and for the transmission of intelligence between the points connected thereby. As every such grant has for its object the procurement of an easement for the public, the incidental powers granted must be so construed as most effectually to secure to the public the full enjoyment of such When the land was taken for a highway, that which was taken was not mere easement. § 309. Telegraph and telephone Not additional burdenMichigan.— In Michigan this question first came before the courts, where an abutting owner had been convicted of an assault upon a workman employed by a telegraph company in the work of digging holes for the purpose of erecting poles. The charge of assault was merely a technical one, but a conviction was procured, and, on appeal, the judgment was affirmed. And in a later case in this State it is decided that the poles * ly the privilege of passing over it in the then known vehicles or of using it the then known methods for either the conveyance of property or transmission of intelligence. The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post boy and the mail coach. It is a newlydiscovered method of exercising the old public easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out. We are, therefore, of opinion that the use of a portion of a highway for the public use of companies organized under the laws of the State for the transmission of intelligence by electricity, and subject to the supervision of the local municipal authorities, which has been permitted by the legislature, is a public use similar to that for which the highway was originally taken, or to` which it was originally devoted, and that the owner of the fee is entitled to no further compensation.” Per Devens, J. Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 578. A minority of the court dissented. 76 People v. Eaton, 100 Mich. 208, * * * * * 59 N. E. 145, 5 Am. Elec. Cas. 87. One judge dissented. The court said, per Long, J.: "Is the plac ing of telegraph poles along a public highway an additional servitude upon the land of the adjacent proprietor? The restrictions upon the use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods. * It is diffi cult to see any distinction between the use of the highway for electric railway poles and poles erected for the use of telegraph and telephone companies. In commenting upon this claimed distinction, Judge Dillon, in his work on Municipal Corporations (4th ed., p. 893, note), says: 'The distinction is so fine as to be almost impalpable.' When these lands were taken or granted for public highways, they were not taken or granted for such uses only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country, or the discoveries of future times might demand." * * 營 and wires of a telegraph or telephone company upon the highway do not constitute an additional burden.7 § 310. Telegraph and telephone Not additional burdenMinnesota. In Minnesota this question arose in an action by an abutting owner to compel the removal of certain telephone poles and wires from the highway, and it was held that such poles and wires did not constitute an additional servitude. The court, in discussing the nature of the easement acquired in a highway, expressed the view that the limitation of the public easement in highways to travel, and the transportation of persons and property in moving vehicles, was too narrow; stated that the method of exercising the easement in the streets was expansive, developing, and growing, as civilization advanced, and said that the development of the conception of a highway from a footpath merely, to a way for pack animals, then for vehicles, and so on down to its present method of uses, was never even dreamed of when the original easement was acquired. 78 § 311. Telegraph and telephone Not additional burden -Missouri. The Supreme Court of Missouri has also held that telegraph or telephone poles and wires are not an additional burden in the streets of a city. This was an action brought to restrain the Bell Telephone Company from maintaining poles and wires in certain streets of St. Louis. As in the Massachu 77 Wyant v. Central Teleph. Co., 123 Mich. 51, 81 N. W. 928, 7 Am. Elec. Cas. 256. 78 Cater v. Northwestern Teleph. Exch. Co., 60 Minn. 539, 63 N. W. 111, 5 Am. Elec. Cas. 111, per Mitchell, J. (two judges dissenting). Whether it be travel, the transportation of persons and property, or the transmission of intelligence, and whether accomplished by old methods or new ones, they are all included within the public highway easement' and impose no additional servitude upon the land, provided they are not inconsistent with the reasonable, safe and practical use of the highway in other and usual and necessary modes, and provided they do not unreasonably impair the special easements of abutting owners in the street, for purposes of access, light and air." Per Mitchell, J. Start, C. J., and Buck, J., dissented from the majority of the court and each wrote a dissenting opinion to the effect that such use did constitute an additional burden, the arguments leading to their conclusion being on a similar line to the New York and other cases. setts and Michigan cases the court was divided, standing three to two. The majority opinion is based upon much the same reasoning as that in the Massachusetts case, 79 the court contending that when a street is opened to the public it has all the incidents attached to it necessary to the full enjoyment thereof, and that as civilization advances, public necessity demands the devotion of the street to many uses unknown and unthought of at the time of its original dedication.80 § 312. Telegraph and telephone Not additional burdenMontana. In Hershfield v. Rocky Mountain Bell Telephone Company,81 which was an action by an abutting owner to restrain a telephone company from erecting a pole in front of plaintiff's premises, the injunction was refused, it not appearing that he suffered any inconvenience peculiar, unnecessary, 79 Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 571. 80 Julia Building Assn. v. Bell Teleph. Co., 88 Mo. 258, 1 Am. Elec. Cas. 801. The court refers to the right to use the streets for the transmission of intelligence, and in this connection says: "The streets are required by the public to promote trade, and facilitate communication in the daily transactions of business between the citizens of one part of the city with those of another as well as to accommodate the public at large in these respects. If a citizen living or doing business on one end of Sixth street wishes to communicate with a citizen living and doing business on the other end, or at any intermediate point, he is entitled to use the street, either on foot, on horseback or in a carriage or other vehicle in bearing his message. The defendants in this case propose to use the street by making the telephone poles and wires the messenger to bear such communications instantaneously and with more dispatch than in any of the above methods, or any other known method of hearingoral communications. Not only would such communication be borne with more dispatch, but, to the ex tent of the number of communications daily transmitted by it, the street would be relieved of that number of footmen, horsemen or carriages. If a thousand messages were daily transmitted by means of telephone poles, wires and other appliances used in telephoning, the street, through these means, would serve the same purpose which would otherwise require its use, either by a thousand footmen, horsemen or carriages to effectuate the same purpose. In this view of it the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message transmitted, relieve the street of a servitude or use by a footman, horseman or carriage." Per Norton, J. 29 Pac. 883, 4 $1 12 Mont. 102, Am. Elec Cas. 73. |