Summary
In Bowerman v. Inter-Ocean Tel. Tel. Co., 121 App. Div. 22, 105 N YS. 565 (1907), the court held that the landowner and the telephone company had agreed the telephone company could put its lines down a fence line.
Summary of this case from Tatum v. R R Cable, Inc.Opinion
July 9, 1907.
Edward Hance Letchworth, for the appellant.
Jay K. Smith, for the respondent.
The plaintiff is the owner of a farm in the town of Mendon in the county of Monroe, extending to the center of the highway. He executed to the defendant a permit authorizing it to erect its telephone poles and maintain its lines along such highway, receiving therefor five dollars. The written permit provided that the poles were "to be set on line of fence," which extended for two-thirds of the farm frontage.
The defendant in pursuance of this license erected in the road along the plaintiff's premises seventeen of these poles, placing them in a straight course, but from five to seven feet from the fence line. Along this line there were several large trees, and if the poles had been erected in strict compliance with the agreement it would have been necessary to trim these trees, seriously impairing their value and usefulness. It is obvious that the parties did not intend that the poles were to be set absolutely on the line of the fence.
The plaintiff testified: "On the line of the fence or very close to it there are a number of trees some of which are large. I did not mean that the company should take down the fence when I signed an agreement permitting it to erect its poles on the line of the fence. If poles had been set absolutely on the line of the fence it would have involved cutting these large trees seriously. I did not intend to have the poles set in such a manner as to destroy the trees utterly. They were to set them — they were to pay for them."
The preservation of these shade trees was a subject to be considered in the location of this telephone line, and the poles were to be erected and the wires strung to reduce the injuries so far as reasonably possible. The land along the roadside was uneven for a considerable part of the way, evidently producing but little.
In construing a permission or agreement of this character the surroundings are important in determining what the parties intended by it. In view of the circumstances referred to we think the defendant substantially fulfilled the requirement that the poles should be set on the line of the fence. So far as we can gather from the evidence, in their present location they do as little injury to the farm as if placed anywhere else along the side of the road, and certainly far less than if they had been erected strictly as stipulated in the agreement.
The animus of the plaintiff's action may be found in his statement that the defendant was to pay for these trees, although their destruction or serious injury was not within the contemplation of the parties when the permit was granted.
The judgment should be reversed and a new trial granted, with costs to appellant to abide event.
All concurred, except WILLIAMS, J., who dissented; ROBSON, J., not sitting.
Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.