
    State Line Telephone Company, Appellant, v. William B. Ellison, as Commissioner of Water Supply, Gas and Electricity of the City of New York, and Thomas Manning, Respondents.
    Second Department,
    October 4, 1907.
    Eminent domain—telephone poles on public road—when municipality, not entitled to compensation,
    A telephone company, entitled by. section 102 of the Transportation Corporations Law ;to construct lines “ over or under any of the' public roads, streets and ' highways,” is entitled to erect its poles on highways acquired by the city of New York in connection with water supply under chapter 445 of the Laws of 1877, ' chapter 490 of the Laws of 1883 and chapter' 189 of the Laws of 1893,- without compensation -to the city.
    As under section 102 of the Transportation Corporations Law the telephone com-, pany may. use said' highways - -without compensation to.the municipality, the latter, cannot claim compensation as owner of abutting lands, for .compensationMs only given to abutting owners when rights in the highway must be condemned.
    Appeal by the plaintiff, the State Line Telephone Company,'' •from an order of the’ Supreme Court, made at the Westell ester Special Term and entered in the office of -the clerk of the county of Putnam on the 12th "day of November, 1906, denying the motion . of the plaintiff for a permanent injunction restraining the defend-ants from interfering with the maintenance by the plaintiff of its telephone poles and wires on a certain highway in Putnam county. . ■ .
    
      Frnk B. Vermilya, for the appellant.
    
      I. J. Beaudrias [Theodore Connoly and William B. Ellison with him on the brief], for-the respondents. -
   Gaynor, J.:

By the Transportation Corporations Law (§ 102) leave is granted by. the state to telegraph and telephone companies to construct, and maintain their fixtures “ over or ¡under any of the'- public roads, streets and highways This is full permission- without compensation so far as the state can give it. Where, however, the fée.'of the highway belongs to the abutting owners, instead of being in the state, or any of its political subdivisions or bodies politic, compensation to such owners has to he made for.the easement taken by such companies (Eels v. Am. Tel. & Tel. Co., 143 N. Y. 133). In the taking of land in Putnam couñity fór its water supply, the city of New York is permitted to take the land in the adjacent highways also, for sanitary reasons,- but only tó care for such highways and hold .them in trust for the public, use'as highways (ch. 445, Laws of 1877; ch. 490, Laws of 1883; ch., 189 Laws of 1893).' The "highway over'which the plaintiff seeks to run,its telephone, wires, on poles was"'acquired by the city in that. way. It follows that the section of .the .Transportation Corporations Law already cited applies to it. To say that inasmuch as the city owns the abutting land also it is entitled, to Compensation may be specious', but not enough so to be misleading. That the city.owns tile abutting land does not make a difference, for the compensation, where it has to'be given, is not given for the abutting land, but for the land in- the highway, and here none can be exacted for the land in the highway, by reason of the leave granted by the statute (People v. Kerr, 27 N. Y. 188).

The order should be reversed and the motion granted.

Hirschberg, P. J., Hooker,-Rich and Miller, JJ., concurred.

. Order -reversed, with ten dollars costs and disbursements, and' motion granted, with costs.  