Opinion
July Term, 1901.
Arthur E. Clark, for the appellant.
John G. Milburn, for the respondent.
This action was originally begun by Maurice Halleran, the plaintiff's ancestor, who was the owner of certain lands situate on a public highway in the county of Genesee, to compel the removal of certain telephone poles erected by the defendant in front of his lands. It is conceded that the plaintiff has no record title to the land to the center of the highway, but that the property to which he has title extends only to the side of the road. The highway is 100 feet wide and was laid out many years ago. The title to it so far as appears is in the Holland Land Company, which conveyed by deed to the defendant the right to erect its poles along the highway. It is found by the learned court below that the poles erected in front of the plaintiff's land have not caused any substantial damage to any easement of light, air and access which the owner of the land has in the highway. The learned court below dismissed the complaint. From the judgment entered upon his decision this appeal is taken.
We have examined this case with considerable care, not because in our judgment there is any difficulty in deciding the questions presented, but because we were advised by the counsel for the appellant that many other cases involving the same questions are pending in the courts, and we desire to settle, so far as this court may do so, the rules which are applicable to these cases.
The plaintiff, although admitting that he has no record title to the highway in front of his premises, insists that he has acquired title thereto by adverse possession. It appears that the plaintiff and his predecessors in title have from time to time as required by statute, cut down the weeds growing in the highway in front of his premises; that once in seven or eight years he has cultivated the land extending from the sides of the road out to the beaten track; sowed crops and seeded it, and has taken off the crops from time to time and cut the grass there growing. He has not in any way inclosed it, not has his occupation of it been exclusive or interfered with the rights of passage of any one desirous of traveling upon the highway clear up to his fence. Without, therefore, considering whether under any circumstances one can obtain an adverse title to a highway in front of his land, we think no adverse title has been acquired in this case, because as the plaintiff admits that there was no written instrument conveying title he could not have obtained title by adverse possession unless he had inclosed the land or customarily cultivated it (Code Civ. Proc. §§ 371, 372), and such cultivation must be notorious, hostile and exclusive, and unless the adverse possession has those qualities it is never effectual as the foundation of a claim of adverse title.
The case must, therefore, be disposed of in view of the fact that the plaintiff has no title whatever to the highway, and he has no other or different right to it than has any one of the public, except so far as being an abutting owner it is necessary for him to use the highway as a means of access to his premises. An encroachment which does not interfere with the right of passage over a highway gives no right to a citizen, who is not to some extent inconvenienced by it, to interfere with it. It certainly gives him no right to require its removal. If it constitutes a nuisance and interferes with the general right of the public, the public alone can compel its removal; but no private individual can interfere with it, except so far as it constitutes to him a private nuisance.
The finding is that the telephone poles do not interfere in any degree with any right which the plaintiff has as an abutting owner. When that fact was made to appear, we are utterly unable to conceive of any reason why the plaintiff should be entitled to maintain this action.
If the plaintiff were the owner of the land to the center of the highway, he would have his right of action either for damages caused by the erection of the poles and the cutting of his trees, or perhaps would be entitled to an injunction to compel the removal of the poles. ( Eels v. American Telephone Telegraph Co., 143 N.Y. 133; Dusenbury v. Mutual Telegraph Co., 11 Abb. N.C. 440.)
It is unnecessary to say whether, in view of the small amount of damage suffered by the plaintiff, he could maintain an action to compel the removal of the poles, or whether he would be remitted to his action at law for damages or ejectment, but if he were the owner of the highway he would have some right of action, as is established by the cases just cited. But in the present case, except so far as the erection of the poles has interfered with the plaintiff's right of access to his own land, he has not suffered any damage and he cannot maintain an action to compel the removal of the poles. For these reasons the judgment must be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.