Summary
holding "in the light of modern invention and modern progress . . . the use by the [Electrification Authority] of the highways for its transmission lines under the act of the Legislature is not an additional servitude, and . . . does not constitute a taking of private property for public use without just compensation"
Summary of this case from Johnson v. Time Warner Entm't-Advance/Newhouse P'shipOpinion
14374
November 9, 1936.
Before BELLINGER, J., Richland, July, 1936. Affirmed.
Suit by D.J. Lay to enjoin the State Rural Electrification Authority from using the highway right of way for its lines. From a judgment in favor of the defendant, the plaintiff appeals.
Decree of Judge Bellinger follows:
This suit was commenced by the plaintiff on the 1st of July, 1936, by his summons and complaint seeking to enjoin the defendant from using the highway right of way for its lines. The plaintiff had given an easement to the State for highway purposes, and the complaint alleges that the erection of the defendant's line upon and along the highway constitutes an additional servitude and is the taking of the plaintiff's private property for public use without compensation and contrary to the Constitution.
The defendant, by its answer, sets up its right and power to use the highway for its lines under the State Rural Electrification Authority Act approved the 14th of March, 1935, and found in the Acts of the General Assembly of South Carolina for 1935, 39 St. at Large, at page 71.
The plaintiff demurred to the answer on the ground that same does not set up facts sufficient to constitute a defense in that the Act referred to is unconstitutional because the section giving the defendant the right to use any State or public highway for its lines violates Article 1, Section 17 of the Constitution of South Carolina and the Fifth Amendment of the Constitution of the United States in that it is a taking of private property for public use without just compensation being first made therefor.
That the answer admits all the facts set forth in the complaint, and the defendant's demurrer to the answer raises a question of law, the decision of which is determinative of the plaintiff's rights. The case, therefore, resolves itself solely into a question of law.
The plaintiff's demurrer did not specify the article of the Constitution which it was claimed that the Act violated, but appropriate motion for amendment was made and allowed setting up the section as above set out.
The question therefore which comes before me in the consideration of this demurrer is whether or not the placing of the defendant's wires, poles, and transmission lines along and upon a public highway, in this instance State Highway No. 18, imposes an additional servitude upon the lands of the plaintiff which are adjacent and contiguous to the highway or an additional servitude on the land actually granted by the plaintiff to the State for highway purposes. If the defendant's lines do impose an additional servitude, then it would be the taking of private property for public use without just compensation and the Act of the General Assembly in so far as same undertook to give the State Rural Electrification Authority power to place its lines on the public highway would be unconstitutional.
Does the placing of the electric line on the highway constitute an additional servitude?
It is, of course, apparent that such use is different in form from the use made of the highway right of way at the time of the original grant, which was doubtless made in what is sometimes referred to as the horse and buggy days. The law, however, must take account of changing conditions and inquire as to whether or not it is a change in conditions brought about by modern invention or whether it is such a departure from the original grant as to constitute an additional servitude.
There appears to be no case in South Carolina deciding the question. In the case of Benton v. Yarborough, 128 S.C. 481, 123 S.E., 204, 205, 34 A.L.R., 402, our Supreme Court held that an individual had no right by permission of county authorities to construct a private telephone line along a public highway over the protest of the owner of the fee, but the question of whether or not the Legislature would have the power to declare that such installation would not be an additional servitude in the case of public corporations was specifically reserved, and is the question to be decided in this case.
It is conceded in the pleadings and established by the Rural Electrification Act that the purpose of the Act is a public and not a private purpose.
There appears to be considerable conflict in the decisions on the point as to whether or not a power line would create an additional servitude, and counsel for both the plaintiff and defendant have submitted written briefs for the benefit of the Court.
The plaintiff calls attention to the case of Charleston Rice Milling Company v. Bennett Company, 18 S.C. 254, holding that the laying out of a street to the use of the public does not divest the title of adjacent properties on the land on which it is projected, but the rights remain the same subject to the easement, but this is not a case of divesting their rights, but it is a question of whether or not the defendant's lines impose such an additional servitude as is not contemplated by law.
The following authorities seem to support the defendant's position: "There is much conflict in the decisions as to whether or not the use of a street or highway for the transmission of electricity, gas, water and other analogous uses is a proper use for street and highway purposes. By the weight of authority, the transmitting and carrying of electricity for light, heat and power, over and along streets, and highways for distribution among consumers is a public use as well as one of the proper uses of a highway." 20 Corpus Juris, 324, citing authorities.
"The easement of public travel acquired by the location of a highway includes the transmission of electricity for lighting and power by means of poles and overhead wires or of underground conduits." New York Cent., etc., R. Co. v. Central Massachusetts Electric Co., 219 Mass. 85, 86, 106 N.E., 566, L.R.A., 1915-B, 822.
To the same effect is the case of Com. v. Morrison, 197 Mass. 199, 83 N.E., 415, 416, 14 L.R.A. (N.S.), 194, 125 Am. St. Rep., 338, where the rule is stated to be that: "The easement which the public acquires includes every reasonable means of transportation for persons, and commodities, and of transmission of intelligence which the advance of civilization may render suitable for a highway. Under this description, * * * gas and water pipes, sewers, telephone, telegraph, electric light and power poles, wires and conduits, electric and horse railways * * * have been permitted [within the limits of the highways]."
In 5th Edition of Dillon's Municipal Corporations, Vol. 3, No. 1221, page 1229 et seq., we find the rule stated to be: "That when a street or highway is laid out it is contemplated that it should be subjected not only to the means of travel known at the time when it is opened, but also to any improvements thereon which invention or science may develop. In this view of the law, telegraphs and telephones are regarded as means of transmitting intelligence, and as substitutes for messengers traveling upon the streets and highways, and as being, under legislative sanction, fairly within the public purposes for which the street or highway was laid out and opened. In jurisdictions where this view prevails, the poles and wires of a telephone or telegraph line do not constitute an additional burden or servitude upon the street or highway, and the abutter is not entitled to compensation, unless he is specially and peculiarly injured." (Citing authorities.)
When the right of way for the highway was granted, we may assume that automobiles had not been heard of and that the grantor had no knowledge whatever that the time would come when large, heavy, and dangerous vehicles running at the rate of thirty or forty miles an hour would pass over the right of way, perhaps endangering those who had occasion to cross from one side to the other or who might be on the side of the road, but surely no Court would say that a right of way previously granted for highway purposes did not include the right to use modern vehicles and conveyances thereon. So, too, the original grantor doubtless did not have in mind that the highways might be used for the carrying of communications by wire instead of by post and the carrying of electricity by wire for heat or light instead of the conveyance of coal or oil along the highway for such purposes, but the mere fact that the grantor could not have foreseen the great progress in modern life did not prevent the governing body from saying that the highways may be adapted to these uses.
It has already become apparent that electric signals are useful along the highways at crossroads and the time may well come when the highways will be lighted by electricity as city streets now are.
It would seem therefore that in the light of modern invention and modern progress that the use by the defendant of the highways for its transmission lines under the Act of the Legislature is not an additional servitude, and that the act of the defendant does not constitute a taking of private property for public use without just compensation.
Having reached this conclusion, it is therefore ordered, adjudged, and decreed that the demurrer herein be and the same is duly overruled and the injunction sought by the plaintiff refused.
Mr. F. Ehrlich Thomson, for appellant, cites: Easement: 18 S.C. 254; 20 C.J., 721; 147 N.E., 146.
Mr. R. Beverly Herbert, for respondent, cites: Easement: 128 S.C. 481; 123 S.E., 205; 20 C.J., 324; 106 N.E., 556; L.R.A., 1915-B, 822; 197 Mass. 199; 83 N.E., 415; 125 A.S.R., 338; 14 L.R.A. (N.S.), 194; 300 P., 165.
November 9, 1936. The opinion of the Court was delivered by
After a careful examination of the record in this case, and consideration of the single issue presented, the Court is satisfied with the well-considered order of his Honor, G. Duncan Bellinger, Circuit Judge, which will be reported.
The judgment of the Court is that the exceptions be dismissed, and that the judgment of the Circuit Court be, and hereby is, affirmed.
MR. CHIEF JUSTICE STABLER, MESSRS. JUSTICES BONHAM and BAKER and MR. ACTING ASSOCIATE JUSTICE A.L. GASTON concur.