
    USE OF STREETS FOR POLES AND WIRES CARRYING HIGH VOLTAGE CURRENT.
    Common Pleas Court of Crawford County.
    James M. Smith v. The Central Power Co.
    Decided, 1920.
    
      Abutting Owners—Rights of in Street not Invaded—By Poles and Wires Primarily for Street Lighting Purposes.
    
    Additional cross-arms and wires, placed on poles standing between the curb and sidewalk for the purpose of carrying a high voltage current for street lighting and other uses, do not constitute an invasion of the rights of abutting owners or an additional burden upon their property, where the cross-arms do not overhang the land of adjoining owners and the lines are being placed by a company having a franchise for the purpose contemplated.
    
      W. C. Beer and E. J. Myers for plaintiff.
    
      Frank Dore and Charles Gallinger for defendant.
   Wright, J.

The defendant has constructed and is construetihg a high voltage electric line along Southern avenue in this city in front of property of the plaintiff and others who have brought similar suits to restrain further construction and for an order for the removal of that part already constructed. Poles are erected at intervals set between the lidewalk and curb on the side, of the street adjoining the property of the plaintiff and others, with cross arms supporting transmission wires. No part of the cross • arms or wires extend over the street line or hang over the land of any of the plaintiffs. The plaintiff claims that this is an invasion of his property rights, that he has not been compensated therefore nor has given his consent to the erection of the poles and. equipment. The defendant claims that it received a franchise from the city of Bucyrus to use the streets for this purpose; that it has a contract for lighting the streets of the city and that the pole, appliances and current conveyed over the same on Southern avenue will be used for the purpose of lighting that street and other streets in the city.

It is well understood that a property owner has a right or property interest in the street in front of his land, but just when that interest ceases or is subservient to the rights of the public has resulted in many conflicting decisions in the courts.

The title to the street is not absolutely in the municipality. It is a determinable fee. The city has the fee only in trust for street purposes: when the street purposes of the city end; then the property owner’s rights begin, and any infringement on these rights is a taking of private property, for which compensation must first be made. The courts have endeavored to determine when the rights of an adjoining owner are taken by stating that any additional burden upon the fee is an infringement of those rights, and before such additional burden can be placed, the property owner’s consent must be obtained. The defendant claims that the erection of these poles and the transmission of electric current is for street purposes, for lighting the streets of the city. This would unquestionably be a street purpose within the meaning of that phrase. If the defendant has shown this by the evidence, it is decisive of the case without considering the numerous conflicting authorities upon the rights of a property owner as against the rights of public utilities who use the street for private purposes, although serving the public generally, such as telephone companies, steam heating companies, etc.

The evidence showed the current furnished by the defendant is to be used for all purposes, including lighting the streets of the city; the defendant claimed that the line in question was a part of a main line running through the city to Upper Sandusky and Carey and that the furnishing of current to this city was only one of its objects.

The engineer of defendant stated that if the line went through to Carey or some other point it. would be for the purpose of completing another circuit, enabling current to be brought into the city from the west as well as the east side, thus doubling the assurance of continuous and ample service. I can see no difference or distinction so far as the rights of the property owners are concerned, whether it goes on through the city or whether the current is made within the corporate limits and.distributed therein.

The claim is made that the line being a high voltage or main line, it requires longer poles, more wires .than would be used for a distributing line for street lighting. The testimony of the defendant was that the same poles would be used for the distributing line, only additional wires would be placed upon them. Will the additional cross arms and additional wires on tbe poles in question place an additional burden upon the street? To say that it would, would be drawing the line to a very fine point. My opinion is that it would not. I can illustrate it by referring to the sewers in the city streets. A sewer is permitted to be placed in the street on the theory that it drains water off of the street and to that extent is used for street purposes. Legally a sewer could not be placed in a street, were it not for that street purpose which it serves; yet the same sewer is used for private purposes, for sanitary drainage of all modern homes along the street, which is in realty its larger purpose or function, and not the drainage of the street which is incidental; yet it would hardly be claimed that because it serves a double purpose that makes it an additional burden upon the fee.

I am unable to see that any added servitude is placed upon the fee by placing a longer pole with three or four more wires than would ordinarily be used for the transmission of current for only lighting the streets. The fact of such equipment being there would be the real invasion, if it is an invasion, and not the number or quantity of wires and cross arms, inasmuch as such equipment would not interfere with the property owner’s enjoyment of light and air or ingress and egress.

Outside, of ingress and egress, light, air and peaceable .enjoyment of his property, the incorporal rights of an adjoining owner in the street are more theoretical than real.

The plaintiff in this case and other plaintiffs in similar suits have testified that the presence of the line in the street has depreciated the value of his property. Whether this is true or only fanciful, we do not know. People generally. would prefer not to have such a line in front of their property. This is probably caused 'by the supposed dangerous agency of electricity. If people along all the roads and all the streets were of this notion, we could not have the modern method of electric lighting.

■ Evidence was given by experts that the high voltage wire was not as dangerous as the lower voltage or distributing lines. The depreciation of the value of property from the danger of high voltage lines is.more imaginary than real, if we accept as true the expert’s opinion. There is undoubtedly a dangerous agency present in the use of electricity, more than there would be in the use of kerosene lamp or gas light. There is also a more dangerous agency present in the use of automobiles over the streets at the rate of speed they travel than there was -in the use of the slow moving ox-cart, yet we do not displace the modern way for the antiquated method, on account of the increase danger attending it, nor can property owners object to the use of the street in this way by reason of the danger.

There may be some inconvenience suffered by property owners by reason of such a line in front of their property; but there is no measurable damage suffered unless ingress or egress, light, air, etc., is cut off. If a pole were set in front of a drive way. it would have to be removed or adequate damage paid. To set a pole in front of an imaginary driveway, or one that .might be established in the future, is not a present damage or loss.

. It is claimed that the General Code requires such transmission wires to be insulated oí covered; the defendant claims insulation of high voltage wires is impracticable and is not a safeguard. If the code is to be construed as requiring wire;s. to be insulated then the law would be a reason for requiring 'the defendant to insulate its wires, and not a reason for tearing them down.

It is contended also that the defendant as assignee of the present lighting contract for the Bucyrus Light and Power Company has no authority under the assigned contract for the reason that- it has not been shown the city consented to such assignment. The defendant has a franchise, as shown in eiidence, to use the streets for its poles and wires, and a contract for lighting beginning December 15, 1919. Its contract and franchises with the city for future lighting would be sufficient even though the present contract is incomplete by reason of. the city not consenting to its assignment.

It having been shown that the defendant is to use the poles, wires and equipment for lighting the streets and public places of the city of Bucyrus, such use of Southern avenue for street purposes is superior to the rights or easement in the street by an adjoining owner and there is no invasion or taking of his property interests. • This conclusion is supported by the following authorities: 25 C. C. (N. S.), 44; 66 O. S., 166; Curtis on Electricity, See. 281.

The case of Mantel v. Bucyrus Telephone Co., 20 C. C., 345, decided by the circuit court of this county, is not applicable for the reason that the pole and equipment enjoined from being placed in front of a business place was not to be used, for street purposes but wholly for private purposes.

The case of Hays v. Columbiana Telephone Co., decided by the circuit court of Columbiana county in 1901, a year after the Mantel ease was decided is in direct conflict with the Mantel ease.

. The case of Stone v. Cuyahoga Light Co., decided by the Cuyahoga Common Pleas Court in 1909, 9 N.P.(N.S.), 545, contains the better reasoning- in cases where the streets are taken for. private purposes.  