Opinion
Nos. 24524 and 24703
Decided June 13, 1934.
Highways — Moving or relocating telephone or telegraph poles and wires — Not additional burden on easement or invasion of abutting property owner's rights — Injury to property to be compensated — Trimming trees and interference with access.
1. The moving and relocation of telephone or telegraph poles and wires within the limits of a highway, or to a strip of ground over which the state has been given an easement for the purpose of widening or improving such highway, is not an additional burden upon the easement nor an invasion of the property rights of the abutting owner, for which he is entitled to compensation, or against which he is entitled to an injunction.
2. For any actual injury to his property, such as trimming of trees or interference with access, caused by poles and lines of wires located, relocated or maintained in and along the highway way, an abutting owner is entitled to compensation. (Paragraph 2 of the syllabus of Ohio Bell Telephone Co. v. Watson Co., 112 Ohio St. 385, approved and followed.)
ERROR to the Court of Appeals of Huron county.
ERROR to the Court of Appeals of Hamilton county.
Both cases were admitted to this court upon allowance of motion to certify the record.
Although presented separately the two cases are joined for consideration and opinion because the determinative issues in both cases are the same.
The first case above was a proceeding under Section 11084, General Code, filed originally in the Probate Court of Huron county to compel the defendant therein, hereinafter referred to as the Telegraph Cable Company, to appropriate lands of the plaintiffs which the plaintiffs alleged had been taken possession of and were being occupied and used by the Telegraph Cable Company without grant from the plaintiffs. The petition asked compensation for land taken, and damages for injury to the remainder of plaintiffs' property. There was substantial agreement upon the principal facts, as shown by the stipulations. The Telegraph Cable Company since the year 1905 had maintained a line of telegraph poles through the unincorporated village of Delphi. Three of such poles were located upon and along the highway that fronted the plaintiffs' property. In May 1931 the state, through its highway authorities, for a valuable consideration, acquired from plaintiffs an easement over a strip of their property about ten feet wide for the purpose of widening the highway. The state highway authorities then notified the Telegraph Cable Company to move its poles to the edge of the highway so extended, and the Telegraph Cable Company in compliance with such notice moved its three poles and the wires attached thereto from their former location and reset them along the edge of the plaintiffs' property, but within the boundaries of the highway. The answer of the Telegraph Cable Company pleaded that because the poles and lines so relocated were within the portion of plaintiffs' real estate which had been granted for road purposes, there was no taking and no use of the plaintiffs' property by the Telegraph Cable Company.
Upon trial the jury assessed the compensation and damages to be paid to the plaintiffs by reason of the appropriation of the property described in the petition at $25.00 for land taken, and $375.00 as damages to the residue, and the Probate Court entered judgment upon such verdict. Petition in error was filed in the Court of Common Pleas of Huron county, and upon hearing and argument the judgment of the Probate Court was affirmed. The case was then taken by error proceedings to the Court of Appeals, where the judgment of the Common Pleas Court was affirmed.
The second case originated in the Common Pleas Court of Hamilton county. The plaintiff, hereinafter referred to as the Telephone Company, filed its petition setting forth that in the conduct of its public utility business it had maintained a line of telephone poles and wires on and along the highway known as U.S. Route No. 50 for a period of more than fifty years; that for the purpose of straightening, paving, and otherwise improving such highway the state had obtained, by proper grant from the defendants, an easement for highway purposes over a strip of land adjoining the highway; that the highway authorities had ordered the Telephone Company to move its telephone line to the edge of the right of way of the improved road, but that when the company undertook to move its poles in order to comply with the order of the highway authorities the defendants had obstructed and interfered with the work, and had threatened violence to the workmen if they proceeded. The petition prayed for an injunction restraining the defendants from further interfering with the Telephone Company's workmen, and from interfering with the Telephone Company's property after its relocation.
The defendants in their answer admitted the essential allegations of the petition and admitted that they had granted to the State of Ohio certain easements in front of their property "for the purpose of maintaining a public highway for the use and convenience of pedestrians, vehicular and other travel, but not including the erection of telephone poles, wires or other telephone equipment." The answer denied that the highway department of the State of Ohio had any authority to order any poles or other equipment to be erected in front of, upon and over the property of the defendants subject to highway easement. The answer prayed for dissolution of the temporary injunction which had been issued against the defendants, that the Telephone Company should be enjoined from further maintaining its poles and lines upon and over such property, and that the Telephone Company be compelled to remove its equipment from its new location. The Telephone Company filed a demurrer to the answer of the defendants for the reason that it was insufficient in law. The Court of Common Pleas overruled the demurrer of the Telephone Company. The Telephone Company elected not to plead further and final judgment was entered for defendants. Upon appeal the Court of Appeals entered the same judgment as had been given by the Court of Common Pleas.
Messrs. Day Day, Mr. L.G. Worstell, Jr., Mr. Howard L. Kern and Mr. Samuel C. Bowman, for plaintiff in error, and Messrs. Rowley Carpenter, for defendants in error, in case No. 24524.
Messrs. Frost Jacobs and Mr. Floyd Anderson, for plaintiff in error, and Messrs. Freiberg Simmonds, Mr. Jerome Goldman and Mr. William Mortashed, for defendants in error, in case No. 24703.
Although the legal procedure was quite different in these two cases, they raised in last analysis the same issue. Did the moving of the poles within the highway constitute the taking of the property of the abutting owners? Was the relocation of the poles in the expanded or widened portion of the highway the imposition of such an additional servitude as required a grant from the abutting owners in addition to the grant of easement for highway purposes?
There is striking difference of judicial opinion in this state and in the courts of last resort of different states regarding the issue raised between utilities in the highway and owners of abutting property. The abutting owners in both the instant cases rely mainly on the decision of this court in the case of Ohio Bell Telephone Co. v. The Watson Co., 112 Ohio St. 335, 147 N.E. 907. The third paragraph of the syllabus of that case states:
"The erection and maintenance of telephone poles and wires within the limits of a country highway is an additional burden upon the easement and an invasion of the property rights of the abutting owner, for which he is entitled to compensation."
The opinion, at page 390, quotes the reason for the rule from earlier Ohio decisions, as follows:
"The rule of law rests upon the clear ground that the appropriation of the public highways for the purpose of telegraph lines was a new use. The highways were originally dedicated for the purposes of public travel, and not for the purpose of telegraph lines. Hence the new use imposed an additional burden."
All the authorities that adhere to the rule announced in the Watson case base their reasoning upon the assertion that the pole lines constituted a totally distinct and different kind of use from any theretofore known, and were not within the contemplation of the abutting owners at the time of the original grant of easement for highway purposes.
But can we say that the reasons for the rule in the Watson case exist in the instant cases? Can we say that pole lines were not within the contemplation of the owners when the easement was granted for the expansion of the highway? The poles were already there. To say the moving of the poles within the highway imposes an additional servitude is to push our legal logic dead against the facts. The operation was, in legal effect and actually, not so much a moving of poles as a moving of highway. The highway was already encumbered with the poles, and any attempted exception or reservation in a grant to the state against an existing lawful use is of no effect.
The rule which has for its object the protection of private property against encroachment by public use, no matter how commendable its purpose, is nevertheless subject to a kind of erosion by the stream of progress. The uses of the highways are continuously expanding; and the rights of the abutting owners are affected thereby. The law may impose reasonable restrictions, but it cannot stop the stream. A sound economy dictates that all forms of public conveyance and communication should be kept as far as possible in publicly defined courses. And private ownership is subject to the development which that economy entails. It would be a retrograde movement of the law to extend the rule of the Watson case beyond the basic reason for the rule.
The utility companies both claimed prescriptive rights in the highway, and the Telegraph Cable Company also claimed rights under an unrecorded grant. The abutting owners, however, asserted that, if such rights existed at all, they could not be extended beyond the original locations of the pole lines. But this court need not be drawn into the legal rationalizing regarding that issue. Having determined that the reason for the rule in the Watson case does not apply to the facts of the instant cases it follows that neither prescriptive rights nor grants are necessary to entitle the utility companies to the use of that part of the property of the abutting owners which is covered by the highway easements.
In the Huron county case, however, there was also a claim for damage done to property beyond the limits of the highway. There is evidence in this record as to trimming of trees, and as to that part of the case the rule of law announced in paragraph two of the syllabus of the Watson case applies. There is also evidence of some interference with ingress and egress on account of the location of the poles. The law is well established that the owner of property which adjoins either a country highway or a city street is entitled to damages for any interference with his access, light or air. But in view of the circumstances in this case the abutting owner was entitled to no damages for diminution of value of the remainder of his property merely because of the moving of the poles.
It is impossible to determine what portion of the damages was based upon the erroneous assumption by the court that the plaintiffs were entitled to payment for diminution of value of the residue of their property because the poles were moved within the highway, as distinguished from actual damages based upon the trimming of trees and interference with access. Nor is the evidence perfectly clear as to the extent or character of the damage and interference. The record does not disclose how the amount awarded for compensation or for damages was determined. But because of the error in the charge of the Probate Court regarding the legal effect of the relocation of the poles within the highway, the case must be remanded for further proceeding in accordance with the law as herein announced. And the Hamilton county case should for reasons herein announced be remanded to the Court of Appeals with instructions to sustain the demurrer to the answer and for further proceedings according to law.
The judgments of the Courts of Appeals are therefore reversed and the causes remanded.
Judgments reversed and causes remanded.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.