
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SMITHDEAL.
    (Supreme Court of Texas.
    May 3, 1911.)
    1. Appeal and Error (§ 1094) — Verdict— Conclusiveness. ' '
    A verdict supported by testimony and rendered under correct instructions and affirmed by the Court of Civil Appeals is conclusive on the Supreme Court on writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dee. Dig. § 1094.]
    2. Eminent Domain (§ 119) — Use op Sreets —Telegraphs and Telephones — Damages.
    One acquiring property abutting on a street subsequent to the erection of telegraph and telephone lines may not recover damages to the property resulting from the presence of the lines before he acquired title, but he may recover damages caused by any subsequent change in the construction of the lines or additions thereto, which change increases the servitude on the street.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 304-314; Dec. Dig. § 119.]
    3. Appeal and Error (§ 1067) — Harmless Errors — Failure to Give Instructions.
    Where, in an action by an owner of property abutting on a street for damages caused by the construction and maintenance in the street of telegraph and telephone lines, the undisputed evidence showed that plaintiff had owned the property for more than two years prior to the bringing of the action, and his right to recover was limited to such damages as accrued within two years before the commencement of the action, the failure to charge that he could not recover for damages to the property occurring before he acquired title was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    4. Telegraphs and Telephones (§ 10)— Threatened Destruction oe Property — Adequacy op Remedy at Law.
    Where the destruction of shade or ornamental trees situated in a city sidewalk abutting on property of a private owner is not necessary in the furtherance of a public service, equity will restrain a threatened destruction thereof, though the owner may have an adequate remedy at law as defined by the rules of the common law ; Rev. St. 1893, art. 2989, giving the remedy by injunction where an applicant may show himself entitled thereto under the principles of equity, and where he is entitled to the relief demanded and such relief requires the restraint of some act prejudicial to him.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    5. Telegraphs and Telephones (§ 10) — Threatened Destruction op Property-Adequacy op Remedy at Law.
    Where the wires and cables of telegraph and telephone lines in a street would kill shade or ornamental trees of an owner of property abutting on the street, he was entitled to a mandatory injunction to remove the wires and cables, since at law he could only recover the depreciation in the market value of his property.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    6. Injunction (§ 5) — Mandatory Injunction — Evidence.
    Mandatory injunctions are not issued unless extreme or very serious damage will ensue from withholding relief.
    [Ed. Note. — For other cases, see Injunction, 'Cent. Dig. § 4; Dec. Dig. § 5.]
    7. Telegraphs and Telephones (§ 10)— Mandatory Injunction — Evidence.
    Where an owner of property abutting on a street recovered damages for a permanent injury to his property caused by the maintenance of telephone and telegraph wires in the street, and there was nothing to show that the wires interfered with the growth of shade or ornamental trees of the abutting owner, he was not entitled to a mandatory injunction to compel the removal of the wires.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by C. M. Smithdeal against the Southwestern Telegraph & Telephone Company. There was a judgment of the Court of Civil Appeals (126 S. W. 942) affirming a judgment for plaintiff, and defendant brings error.
    Affirmed in part and reversed in part.
    See, also, 124 S. W. 627.
    A. P. Wozencraft, W. S. Bramlett, and W. E. Spell, for plaintiff in error. Morrow & Smithdeal, for defendant in error.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DIBRELL, J.

This is an action by C. M. Smithdeal, plaintiff below, against the Southwestern Telegraph & Telephone Company, defendant below, begun in the district court of Hill county, for tlie dual purpose of recovering damages done his property, situated in the city of Hillsboro, by reason of the construction by said company of its telegraph and telephone lines in and along the sidewalks and streets of the city of Hillsboro adjacent to his property occupied by him as a homestead, and to secure a mandatory injunction requiring the defendant to remove -certain of its wires and cables. The claim for damages and mandatory injunction was based on the allegations: That plaintiff own-ed and occupied a certain lot situated at the intersection of Franklin and Ivy streets in •the city of Hillsboro, fronting 90 feet on one •street and 160 feet on the other, having up•on it a dwelling house and the usual outhouses. That between the lot and the street -there is a sidewalk on one side of his property in which are growing large and valuable shade trees belonging to plaintiff, and •which render more valuable his property by adding thereto comfort and beauty. That •defendant has erected poles along and on the ■sidewalk fronting Franklin and Ivy streets, -and has placed cross-arms on the poles and -strung thereto wires and cables; that it “has erected and placed a large, tall, rough, ■and unsightly pole” at the northeast corner -of plaintiff’s property in the sidewalk, and ■one of like character on the east side, and ■attached thereto long, ugly, and unsightly .cross-arms and spikes and strung thereon •wires, cables, and guy wires. That all of -such structures obstruct plaintiff’s view and -produce an ugly sight which has greatly depreciated the value of his property, making -it less desirable. That the wires and cables are so strung and attached to said poles as ’to rest in and among the limbs and boughs of said trees and have injured such trees by 'bruising and breaking the limbs, and if suffered to remain in such position will even-tually kill and destroy his trees entirely, to 'his irreparable injury and damage in the •sum of $500. The claim for accrued dam-ages to the trees was laid at $500, and to the property generally at $700. The defendant -answered to the merits by general denial and ■a number of special pleas, among which were •the following: That it had a permit from ■the state of Texas to do business in the -state; that in conformity with such permit and the grant of a franchise from the city -of Hillsboro it constructed its lines in and along the streets and sidewalks in said city and is operating a local and long-distance exchange in the city of Hillsboro for telegraphic and telephone purposes; that its 'business is conducted as a public service; that its lines, consisting of poles, wires, ca-íbles, and guy wires, are so constructed as not .to interfere with the use of said streets and ■sidewalks and in compliance with the city .ordinance controlling such structures; that .-said lines are properly constructed and maintained ; and that said lines were constructed ’.long before plaintiff owned his said property and before his said trees were planted. The cause was tried by a jury, who assessed the damage at $200 and found, in response to a request by the court, that it was not necessary for defendant’s cables to remain in the boughs of plaintiff’s trees. Based upon the verdict of the jury, the court entered judgment against the defendant for the sum of $200, with interest thereon at 6 per cent, per annum from date of judgment, and awarded plaintiff a mandatory injunction in the following language: “ * * * It is therefore ordered, adjudged, and decreed by the court that the plaintiff have a mandatory injunction requiring the said defendant to remove the said cables from the branches of the plaintiff’s trees, and that said injunction be perpetual and forever enjoin the defendant from placing its cables in the plaintiff’s trees or in the branches of plaintiff’s trees, and that the defendant be at once required to remove said cables so that the same will not come in contact with the plaintiff’s said shade trees.” From the foregoing judgment the defendant appealed to the Court of Civil Appeals for the Fifth Supreme Judicial District, and said judgment was affirmed by said court (Southwestern Telegraph & Telephone Co. v. C. M. Smithdeal, 126 S. W. 942) and is in this court on writ of error.

The material facts adduced on the trial of this cause as found by the Court of Civil Appeals were substantially as follows: “Defendant’s constructions consisted of poles set at intervals along the sidewalks in the streets, some of which were stayed by guy posts and wires, and on said poles were crossbeams típon which were strung wires and cables; the whole forming a complete structure. Part of this structure was. placed on the sidewalks adjoining plaintiff’s lot and other parts on the sidewalks opposite said lot. The evidence shows .that plaintiff owned a lot in the city of Hillsboro, on which he had erected a residence which he occupied as a homestead, and on the sidewalks adjoining shade trees were growing. Defendant company had erected its lines along said sidewalk, having authority from the state and said city of Hillsboro so to do. Its wires and cables had come in contact with the branches of said trees, thereby injuring them, which‘depreciated the value of plaintiff’s lot and impaired its use for the purpose of a home. The evidence shows that the cables were interfering with the growth of the trees, and that said cables could be placed higher on the poles there erected, where there would be no interference, and- without any great expense or material inconvenience to defendant in the operation of its business.”

At the request of defendant the Court of Civil Appeals made a further finding of facts as follows: “(1) That the main part of appellant’s structure was built about the year 1895, and before the appellee acquired the lot on which stands his residence, and that only slight additions have been made there to in the two years next preceding the bringing of plaintiff’s suit. (2) That said structure * * * does not interfere with or incommode public travel more than is usual in structures of like character, erected for the transportation of messages in the telegraph and telephone business. (3) That the said structure was erected before appellee planted his trees and at a time when the growth of said trees had not developed.”

We have undertaken to give a fuller statement of 'the pleadings and facts, perhaps, than the importance of the case justifies; but we deem it essential to do so to a clear understanding of the points of law decided.

Two salient questions are presented for ■consideration in disposing of this case: (1) Whether under the pleadings and proof the plaintiff was entitled to recover damages to his property occasioned by defendant placing its telephone poles and equipments on the ■sidewalks in front of his property abutting the street and in the boughs of his shade trees growing on such sidewalks, under the •circumstances and producing the effect set forth in plaintiff’s pleadings; and (2) whether by reason of such pleadings and proof as herein indicated he is entitled to a mandatory injunction requiring defendant to move its wires and cables from their present position.

While there are other questions involving the sufficiency of plaintiff’s pleadings and the proper admission of testimony raised in the petition for writ of error, we do not think .such issues seriously bear upon the merits and a proper disposition of the issues to be •decided.

When this case was before the Supreme ■Court upon certified question (S. W. Telg. & Telep. Co. v. Smithdeal, 124 S. W. 628), three points of law growing out of plaintiff’s present action were definitely settled: (1) That •defendant, as a telephone company, by the •construction of its lines in the public streets ■created an additional burden upon such ■streets and is liable to abutting property owners for any damage resulting to such property caused by the structure of such lines; (2) that, notwithstanding the telephone line may have been constructed by authority •of law and in a proper manner, yet, if the presence of such line in the street caused or •contributed to the depreciation of the “market value” of the abutting property, the company is liable for such damage; and (3) that the plaintiff had the right to grow trees upon the sidewalk abutting his property, and if his trees thus growing were damaged by the wires or cables of defendant, and such damage to the trees contributed to the depreciation of the market value of the property, defendant would be liable. S. W. Telg. & Telp. ■Co. y. Smithdeal, 124 S. W. 628, and authorities therein cited.

The contention of the defendant that because its line of telephone was constructed .■and in operation before plaintiff became the ■owner of the abutting property would be a complete defense to plaintiff’s claim for damages to his property resulting from the causes set forth in his petition, were it not true that there was evidence, as indicated by the findings of fact by the Court of Civil Appeals, to the effect that additions had been made to the structures of the defendant within the two years next preceding the bringing of plaintiff’s suit, and there is in the record evidence that, after plaintiff purchased the property adjacent to the streets along which defendant has constructed its lines, at least two large and tall telephone poles had been placed and in different localities from where they formerly were, and at least one large cable strung, and that there was so'me injury to the boughs and limbs of his trees caused by the presence and contact of the cables.

There being testimony of this character, and the issue having been properly submitted to a jury, we are not authorized to interfere - with their finding on this issue. Besides this, the proof showed that plaintiff had owned the property for more than two years before the suit was begun.

We think that, notwithstanding defendant’s telephone lines had been erected in the street before plaintiff’s purchase of the abutting property, and in consequence of this fact he could not recover damages to such property that resulted from the presence of the structures before he became the owner of his property, he would nevertheless be authorized to recover any proper damage that might have resulted to his property by any changes in the former construction of its lines, or additions thereto within the time to which plaintiff’s right of recovery was limited, which might have been found by the jury as increasing the existing additional servitude to the use of the streets occasioned by the former presence of defendant’s structures. G., C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467; G., C. & S. F. Ry. Co. v. Eddins, 60 Tex. 656; Dillon, Mun. Corp. §§ 698, 698a; Lewis, Em. Dom. § 131; Stowers v. Postal Teleg. Co., 68 Miss. 559, 9 South. 356, 12 L. R. A. 864, 24 Am. St. Rep. 290; Theobold v. Railway Co., 66 Miss. 279, 6 South. 230, 4 L. R. A. 735, 14 Am. St. Rep. 564; Keasbey on Electric Wires, p. 81, §§ 16, 17; Clausen v. Baltimore Teleg. Co., 24 L. R. A. 721, note.

Plaintiff’s claim for damages occasioned by the new servitude imposed upon the streets abutting his property by the construction of defendant’s telephone lines accrued to him without regard to whether or not he owned the fee in such streets. It is unnecessary to go into a discussion of that question in order to determine the right of plaintiff to damages in this case. Keasbey on Electric Wires, p. 82, § 18; Story v. N. Y. Elec. R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146; Smith v. East End St. Ry. Co., 87 Tenn. 626, 11 S. W. 709.

It is made a ground of complaint that the jury was not instructed that plaintiff could not recover damages done his property by the construction of defendant’s lines before plaintiff’s acquisition of the property alleged to have been damaged; but, while it would have been proper to so have instructed the jury, it became unnecessary to do so in view of the fact that the undisputed testimony showed that he had owned the property for more than two years prior to the bringing of his suit, and his right of recovery was limited to such damages as might have accrued to his property within two years next before the filing ,of his suit. We therefore think the judgment for damages was authorized by the law and the evidence.

Tne next question to be considered is whether the facts developed by plaintiff on the trial of the cause were sufficient to entitle him to the mandatory injunction awarded by the trial court and affirmed by the Court of Civil Appeals. It may be stated in a general way as the law of this state that the threatened destruction of shade or ornamental trees situated in the sidewalks of a municipality abutting the property of a private owner, where the proof is clear that the destruction of such trees will be effected by the instruments complained of, and it is shown that no reasonable necessity requires the destruction of such trees in furtherance of some public service, such instruments may be the subject of removal by mandatory injunction, and this equitable remedy may be invoked even though the party whose property is thus threatened with destruction may have an adequate retm edy at law as that remedy is defined in cases denying an injunction under the rules of the common law.

The tendency of „ the holdings of the Supreme Court has been in recent years to so modify the common-law doctrine of' denying the equitable remedy of injunction where there exists an adequate remedy at law, as that remedy is commonly understood, as to hold that article 2989, Revised Statutes, gives the remedy by injunction not only “in all other cases where the applicant for such writ may show himself entitled tnereto under the principles of equity,” but, in addition thereto, the remedy by injunction is given “where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief, or any part thereof, requires the restraint of some act prejudicial to the applicant.” Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. In the case under consideration plaintiff’s pleadings clearly entitle him to the mandatory injunction sought; but the evidence does not sustain the pleadings in that regard in the remotest degree. The evidence does, however, show that defendant would not be authorized to destroy plaintiff’s trees growing in the sidewalk abutting his property, for the reason that such extraordinary authority must result from reasonable necessity, and the evidence shows 'on this point that no reasonable necessity existed for the destruction of such trees in order to maintain defendant’s structures, but, on the other hand, there is no evidence that the wires or cables of defendant’s telephone line, if left in their present place, would destroy plaintiff’s trees.

[5] Applying the principles here laid down, if it were shown that the wires or cables of defendant’s line, left in their then place, wouid kill or destroy plaintiff’s trees, he would be entitled to the extraordinary remedy sought, although he would have his action for damages for the destruction of his trees. Theoretically this would be an adequate remedy at law denying him the equitable remedy by injunction; but practically ifwould be inadequate, for, under the well-established rule fixing the measure of damage for destruction of shade trees, such claim would be confined to the effect the destruction of such trees would have toward depreciating the “market value” of the abutting property, while the full measure of damage could never be reached without invading the realm of sentiment, which the staid rules of law deny. High on Inj. § 727; Elliott on Roads & Streets, §§ 665, 706.

It is contended by counsel for defendant that there is no evidence in the record showing, or tending to show, that its wires or cables have interfered with the growth of plaintiff’s trees, or that if left in their present position plaintiff’s trees would be destroyed or seriously injured. The evidence in the record, affirmatively shows that the growth of plaintiff’s trees has not been interfered with by defendant’s wires or cables, and the record is silent as to any threatened serious injury or damage to plaintiff’s trees.

In American & English Encyclopaedia of Law (2d Ed.) vol. 16, p. 342, the rule governing the granting of mandatory injunctions is thus laid down: “Mandatory injunctions will never be granted unless extreme or very serious damage at least will ensue from withholding that relief; and each case must of course depend on its own circumstances.”

In the light of the foregoing rule as applicable to the case made by plaintiff’s evidence, we are of opinion that the mandatory injunction in this case was wrongfully granted.

It is also our opinion that in this case the plaintiff, having recovered damages for the permanent injury to his property caused by the wrongful acts of defendant complained of, is not, under the peculiar facts disclosed' in the record, entitled to the additional remedy of mandatory injunction. Apparently his grievance has been satisfied.

In accord with the foregoing view, we are of opinion that the judgments of the district court and Court of Civil Appeals in so far as plaintiff was awarded damages should be affirmed, and that in so far as plaintiff was granted the mandatory injunction by the district court and affirmed by the Court of Civil Appeals the judgments should be reversed, and judgment here rendered that the petition for a mandatory injunction be denied, and that the petition be dismissed, and it is so ordered.  