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element to be considered in awarding damages.17 And in arriving at the value of the land actually appropriated, the generable salable value of the right of way for other uses than that to which it is applied by the railway company cannot be considered.18 And in this connection it is declared that the question is how much the land has been damaged by the erection of the telegraph line along the railroad right of way, and not what the property would be worth to the most advantageous use to which it could be put and that the damages are only nominal where such right of way is not interfered with by the telegraph line.19 And the fact that the railroad company may, at some future time, desire to use the portion sought for by the telegraph company, for the construction of another track or some necessary appurtenance to the maintenance and operation of its line, is not to be considered as an element of damages. And this is especially true where the telegraph company has agreed in its petition to reconstruct its line on any portion of the right of way that the railroad company may designate, if at any future time the latter desires to use the portion sought to be appropriated.20 In Louisiana it is held that a telegraph company in such case will be obliged to pay only the value of the use and occupation of the property it appropriates for its right of way.21 Under the Virginia statute conferring the right upon a telegraph company to contract with the owner of property, or of any interest or easement therein, for a right of way for its lines, and providing that in case of failure to agree it shall be entitled to the right of way upon making just compensation in the manner provided for the acquisition of lands by an internal improvement company, the telegraph company, where it cannot agree with a railroad company as to the use of a portion of the latter's right

17 Texas & N. O. R. Co. v. Postal Teleg. Cable Co. (Tex., 1899), 52 S. W. 108; Southwestern Teleg. & Teleph. Co. v. Gulf, C. & S. F. R. Co. (Tex., 1899), 52 S. W. 106.

18 Atlantic Coast Line R. Co. v. Postal Teleg. Cable Co., 120 Ga. 268, 48 S. E. 15.

19 Postal Teleg. Cable Co. v. Ore

gon S. L. R. Co., 23 Utah, 474, 65 Pac. 735, 740.

20 St. Louis & C. R. Co. v. Postal Teleg. Co., 173 Ill. 508, 51 N. E. 382.

21 Postal Teleg. Cable Co. v. Louisiana W. R. Co., 49 La. Ann. 1270, 22 So. 219.

of way, is entitled to the appointment of commissioners to determine the just compensation.22

§ 325a. Same Subject-Where change in location of poles may be required.- What may be said to be the generally accepted rule as to the measure of damages where a telegraph company seeks to construct its line along the right of way of a railroad company, that is, that the amount of compensation should be determined by the extent to which the right of way of the railroad company is injured or impaired, or in other words, that the decrease in the value of the use is the measure of damages,23 is held not to be affected by the fact that it is provided by statute that the telegraph company may be required by the railroad company to yield possession and locate its poles elsewhere upon notice from the latter company that it needs for railroad purposes all or part of the ground occupied by the former company. In a recent case in Ohio in which this question arose it was said: "From the best light we have upon the law applicable to this case, we believe the measure of compensation should be the amount which the right of way of the railroad company for railroad purposes is diminished in value by the proposed easement of the telegraph company, or, in other words, the amount of the decrease in the value of the use of such right of way for railroad purposes which will be caused by the appropriation of an easement on the same for the purpose of erecting and maintaining a telegraph line thereon. It may be said that this rule should be modified or limited in its application, because of the provision in the statute authorizing the appropriation whereby the railroad company at any future time may notify the telegraph company that it needs for railroad purposes a part or all of the ground occupied by it, in which event the telegraph company is required to yield possession and locate elsewhere. We think there should be no modification for that reason. The appropriating company, desiring to avail itself of a statute containing such a provision, assumes all the risks of being ousted in whole or in part, and ventures upon gaining possession and holding it against the will of the

22 Postal Teleg. Cable Co. V. Farmville & P. R. Co., 96 Va. 661,

32 S. E. 468, 1 Va. S. C. Rep. 89. 28 See § 325 herein.

railroad company. The latter does not welcome the new companion, and it may, in course of time, be asked to give way to the needs of the railroad. But it may not comply, and litigation will follow to secure a full possession to the owner of the right of way. Of the probability of these sequences, the telegraph company has full knowledge, and it cannot insist that such probable results should mitigate the compensation to be paid for the right of appropriation." 24

§ 326. Telephone line - Measure of damages - Construction of. The measure of damages for the construction of a telephone line along a public highway is held to be the difference in the market value of the land before and after the construction of such line.25 Where nominal damges have been awarded to an abutting owner for the injury sustained by the constructing of a telephone line in front of his property, and he has accepted the same, he is precluded from subsequently maintaining another action for the same injury on the ground that he has not received adequate compensation, since, in awarding damages for an injury which is of a permanent nature, the damages are assessed both in view of past and of probable future injury.26

§ 327. Land condemned for water main-Telephone additional servitude.- Where land is condemned for the purpose of constructing a water main from the pumping station of its system to the distributing station, it is held that the construction of a telephone over the same line will entitle the party whose land was appropriated for the former purpose to additional compensation.27

§ 328. Electric light companies Use of streets-Similar to gas companies. The use of the streets for the erection of poles, and the stringing thereon of wires, is very similar to

24 Cleveland, C. C. & St. L. Ry. Co. v. Ohio Postal Teleg. Cable Co., 67 Ohio St. 306, 67 N. E. 890, 8 Am. Elec. Cas. 252, per Price, J.

25 Hankey v. Philadelphia Co., 5 Ponn. Super. Ct. 148, 41 Week. N. of Cas. 27.

26 Brown v. Southwestern Teleg & Teleph. Co., 17 Tex. Civ. App. 433, 44 S. W. 59.

27 Spokane v. Colby, 16 Wash. 610, 48 Pac. 248.

that of laying pipes for the supply of light by means of gas. In each the object to be accomplished is the same, that is, to supply light for the streets, or for private individuals or, as in most cases, for both purposes. The main difference, so far as the use of the streets is concerned, is that one is a use of the streets below the surface, while the other accomplishes the same results by means of poles and wires above the surface. This difference is one as to the mode of exercising the use, rather than one as to the use itself. The use of the streets under proper authority for the laying of gaspipes thereon is not such an additional burden as will entitle the owner to compensation.28

§ 329. Electric light line Whether additional burden Public lighting - City streets. The use of city streets for the purpose of supplying light for the benefit of the traveling public is a proper street use. This has been held in the case of laying gaspipes; 29 but it has been contended that the erection of electric light poles and stringing of wires thereon, though for the same purpose, is an additional burden, since they are above the surface of the street, and thus are an exclusive appropriation of the same to the hindrance of travel thereon, and constitute an additional burden entitling the abutting owner to compensation. This question has arisen several times in New York, and on each occasion it has been held that poles and wires erected for the purpose of lighting city streets are a public use, and constitute no additional burden.3

28 Crooke v. Flatbush WaterWorks, 29 Hun (N. Y.), 245, 2 Dill. on Mun. Corp., § 691, note; In Bloomfield & R. Nat. Gas L. Co. v. Calkins, 62 N. Y. 386, it was held necessary to obtain the consent of the abutting owner or make compensation to him in order to lay gaspipes in a rural highway.

29 See § 328, herein.

30 Tuttle v. Brush Elec. Illum. Co., 50 N. Y. Super. Ct. 464, 1 Am. Elec. Cas. 508. This was an action for a permanent injunction to restrain the erection of poles and

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wires in certain streets in New York city. It appeared that the defendant had a contract with the city for the lighting of certain streets. The Act of 1813, under which the particular street in question was opened, provided that the fee to the street was to vest in the city in trust, to be appropriated and kept open in like manner as the other public streets in said city are, and of right ought to be. Prior to 1813 the city had, by ordinance, provided for the lighting of the streets. "The trust on which

In Mississippi it is decided that when property is condemned or dedicated to public use as a street the city acquires the right to light the same as an incident to the right of public passage, and that it follows that the municipality may authorize some other person to furnish lights for that purpose without liability to an abutting owner for damages for the erection of the necessary appliances.31 In an electric railway case

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the city held the streets was that they were to be appropriated for the purpose that the streets of said city were at that time used, viz., among others for lighting the streets. If the city authorities had erected the poles for the purpose of supplying the streets with light, it is evident that plaintiffs could not complain. Such a use of the streets would have been within the express words and conditions of the grant, and just such a use as that for which the city held the streets, viz., for the purpose of a public street. The fact that when the act was passed, the lamps were oil placed on poles, and no poles were needed to carry the conductors to such lamps, would not prevent the city, when an improved method of lighting the streets had been discovered, from using such improved method.

It cannot be seriously maintained that the structure here erected closes the street to any appreciable extent, nor that such poles seriously affect the light or air of, or the right of access to, plaintiff's property, but such use of the streets is entirely consistent with the use of the street as a street, and is not such a structure as is subversive of and repugnant to the uses of the street as an open public street," per Ingraham, J. People ex rel. McManus v. Thompson, 65 How. Pr. (N. Y.) 407, affd.. 32 Hun (N. Y.), 93, 1 Am. Elec. Cas.

554, was an application for mandamus to compel removal of electrie light pole. Motion was denied. Tiffany v. U. S. Illum. Co., 51 N. Y. Super. Ct. 286, which says that the use of the streets for public lighting is a public use. This case was an appeal from an order restraining the construction of elec tric light pole in front of abutting owners' premises. Order was affirmed on ground that it was not consistent with the testimony that this particular pole and wire was not necessary for the public use. Johnson v. Thomson-Houston Elec. Co., 54 Hun (N. Y.), 469, 28 N. Y. St. R. 295, 7 N. Y. Supp. 716, 3 Am. Elec. Cas. 203, reversing judg ment of lower court requiring removal of an electric light pole from street. Electric Construction Co. v. Heffernan, 34 N. Y. St. R. 436, 12 N. Y. Supp. 336, Mem., 58 Hun (N. Y.) 605, 3 Am. Elec. Cas. 207. The court, in this case, affirmed an order granting an injunction restraining an abutting owner from cutting down electric light pole in front of his premises, holding that there was nothing showing that the pole was a nuisance or obstructed the enjoyment of his rights.

31 Gulf Coast Ice Mfg. Co. v. Bowers, 80 Miss. 570, 82 So. 113, 8 Am. Elec. Cas. 226. The court said: "The authorities are quite uniform that a city or town may light its streets as a means of mak

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