Opinion
August, 1907.
George W. O'Brien, for plaintiff.
A.H. Cowie, for defendants.
The fundamental question in this case is whether or not the use of a city street for the maintenance of telephone poles and wires is a street use.
Upon the trial of this cause it was assumed by both sides that Townsend street was a city street in a thickly populated district. After the evidence was closed and upon the argument, for the first time the counsel for the plaintiff raised the point that there was no evidence in the case but that the locus in quo, although within the city limits, was sparsely populated and had the characteristics only of a rural highway. In view of the course of the trial, I think it was too late to raise that point. But, beyond this, the court will take judicial notice of the census which shows the population of Syracuse to be considerably over 100,000. The evidence shows that the plaintiff's residence is within a half a mile of the center of the city; that it is in a block from 340 to 350 feet in length on which there are seven residences; that the street had been known by the plaintiff for nearly sixty years; that sixty years ago there were but a few houses on the street; that it has been built on since; that the street is paved with a concrete pavement and that there are two street railroad tracks in the street. I think enough was shown to bring the street within the category of a city street in a thickly populated territory.
The Eels case (Eels v. American Tel. T. Co., 143 N.Y. 133), establishes the rule of property in this State to be that the maintenance of a telephone line in a country road between the center line and the exterior line of the highway, upon property where the owner holds the fee to the center of the road, is an additional burden, not contemplated by the original dedication of the highway and not within the scope of the public use. The reasoning of the court in that case has been the subject of considerable criticism; but, in whatsoever light that reasoning may be regarded, that case establishes a rule of property in this State.
But a distinction has been made between city streets and rural roads or highways in respect to the public easement. Whether this distinction is well founded in its last analysis does not require discussion here. In the present condition of the adjudicated cases I think I am required to hold that the maintenance of a telephone line in front of the plaintiff's premises on Townsend street is within the public easement and a proper street use. Castle v. Bell Tel. Co., 49 A.D. 436; Johnson v. New York Penn. T. T. Co., 76 id. 564.
These cases were both decided in this department; and, while I recognize that there is a distinction between what was actually decided in the cases and the questions arising in the case at bar, the discussion in the two cases, which I deem it my duty to accept, upholds the contention of the defendants in this case.
It seems to me that, with this proposition settled, the plaintiff can have no private injury to be redressed in this litigation; for it must be conceded that there was no attempt in this case to invade the property of the plaintiff or interfere with any of his private rights.
There is no doubt but that telephone companies get their right to the use of the public easement in streets directly from the Legislature, but subject to police regulation by the municipal authorities. Village of Carthage v. C.N.Y.T. T. Co., 185 N.Y. 448.
I am inclined to the belief that Independent Telephone Company of Syracuse was engaged in constructing its line in front of the premises of the plaintiff in its own right and hence was not subject to any of the ordinances affecting the Syracuse Telephone Company.
But, assuming that the Independent Telephone Company was extending the lines of the Syracuse Telephone Company and in its right and subject to the restrictions of the ordinances, the rescinding of the ordinance of January 7, 1901, and the filing of the map and the approval of the proposed construction by the commissioner of public works, on the 16th of February, 1906, which the defendants were enabled to prove under their supplemental answer, would leave at most a technical cause of action for trespass, with the possible right to the recovery of six cents damages, which would not justify by any possibility the exercise of the injunctive power of the court or entitle the plaintiff to a recovery in this case.
I do not think the general ordinances of the city put in evidence by the plaintiff affect the questions under consideration.
My conclusion is that the complaint be dismissed and the temporary injunction dissolved; but, in view of the supplemental answer, without costs to any party or parties in favor of any party or parties.
Complaint dismissed and injunction dissolved, without costs.