
    New Union Telephone Company, Appellant, v. Julia M. Marsh, Respondent, Impleaded with Julia A. West.
    
      Telephone company—its right to use milage streets f‘or its poles and wires—it is subject to regulation by the local authorities—it may condemn an easement, but not the fee — a prayer asking condemnation of the fee is not fatal to the proceeding-failure of the municipality to fkc the places for the poles and wires—the municipality is not a necessary party to the condemnation proceeding—condition in the consent giren by the municipality that it shall be raid if the telephone exchange is not completed in eighteen months.
    
    Section 102 of the Transportation Corporations Law (Laws of 1890, chap. 566), which gives to a telephone corporation organized thereunder the right to “erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways * * * within the limits of this State,” confers upon the corporation a franchise direct from the State to use the public streets and highways of. the State for the erection and maintenance of its lines.
    
      The right of such company under such franchise to use the public streets and highways is subject to the reasonable control, supervision and regulation by the authorities of the municipality in which such streets and highways are located in the exercise of its general police power.
    The corporation has authority under section 102 of the Transportation Corporations Law to take proceedings to condemn the right to place its poles and lines in a village street, the fee of which is in the abutting owners.
    The corporation should not be permitted to take the fee of any land in the street, but only an easement for its poles and a right of way for its wires.
    The fact that, in the petition, the corporation asks permission to condemn the fee does not, however, require the dismissal of the proceeding.
    The failure of the corporation to show that the local authorities have approved the location of the poles and wires at the place in question is not fatal to the proceeding, although it seems that the better practice is to have such approval precede the condemnation proceedings.
    Under section 3361 of the Code of Civil Procedure, which provides that the petition and notice of presentation “ must be served upon all the owners of the property at least eight days prior to its presentation,” and under section 3358 of said Code, which defines the term “ owner ” to include “ all persons having any estate, interest or easement in the property to be taken,” it is noé necessary that the municipal authorities be made parties to the proceedings,- as no public right is sought to be taken therein, and as the municipality has no estate, interest or easement in the property sought to be taken, and is not an “owner” within the meaning of said section.
    The franchise to erect the poles and other necessary fixtures in the streets having come from the State, the fact that the consent granted by the local authorities to the corporation provides that it shall be void if the telephone exchange is not completed within a period of eighteen months, and that such period has expired, does not affect the corporation’s right to maintain the condemnation proceedings, where it appears that the consent of the local authorities in no way assumes to regulate or to fix the places or manner in which the poles and wires shall be erected.
    Houghton, J., dissented.
    Appeal by the plaintiff, the New Union Telephone Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the 14tli day of October, 1903, upon the report of a referee dismissing the proceeding.
    The proceeding is one brought for the condemnation of a piece of land twelve inches in diameter, situated between the curb and sidewalk on the westerly side of Ridge street in the village of Glens Falls, in front of the residence and premises of the defendant Marsh, together with the right to erect a telephone pole thereon. with a crossarm- at the top thereof nine feet long and with the right to string wires and cables parallel with Ridge street and support the same on the top of said pole and crossarm and at least twenty-five feet distant from the ground,
    . The plaintiff is a telephone company organized under the Transportation Corporations Law (Laws of 1890, chap. 566,- art.' 8). The defendant Marsh owns the fee in front of her premises to the center of the street. In March, 1900, the board of trustees of the village of Glens Falls passed a resolution giving its consent to. one Charles W. Cool, his heirs and assigns,, to erect poles and other necessary fixtures -and to string wires and cables in the streets of the village for a metallic circuit and long distance telephone system, and provided that the same should be erected so as not to interfere with the full and free use of such streets and that the'same should be erected under the direction of the board of trustees. The resolution also provided that if the telephone exchange was not com- • pleted and in working order within eighteen months from the date thereof the consent should cease and become void. The rights of Cool under this resolution or franchise were thereafter assigned by him to the plaintiff, who in April or May, 1901, erected a pole upon the premises in question which were then owned by one Edward W. West, who in August following caused the pole thus erected to be cut and materially weakened. . Another pole was immediately erected by the plaintiff at the same place. An action was then commenced by the plaintiff against West for a permanent injunction to restrain him from cutting -down or interfering with the pole. The court at Special Term in that action denied a motion for a preliminary injunction to that effect, pendente lite. The plaintiff appealed to the Appellate Division and the order was affirmed without an opinion. • (New Union Telephone Co. v. West, 66 App. Div. 616.) The action was thereafter tried and resulted in a judgment dismissing the complaint. Shortly before the trial the property was conveyed by West to the defendant Marsh, who nów owns it subject to a mortgage owned by the defendant West. The plaintiff , then commenced this proceeding to condemn by presenting to the court its petition under section 3360 of the Code of Civil Procedure. In an amended (petition it states all the facts required by that section to be stated. In "the answer of the defendant Marsh she denies substantially all the aliegations of the amended petition, except the ownership of the defendants. She alleges that the franchise to the plaintiff from the village of Glens Falls had expired, pleads the former adjudication as a bar and alleges that the village of Glens Falls was a necessary party defendant. The issues thus framed were referred to a . referee .to hear and determine. From the judgment entered upon his decision dismissing the petition with leave to renew, this appeal is taken.
    
      Henry W. Williams, for the appellant.
    
      T. W. McArthur, for the respondent.
   Chester, J.:

The Transportation Corporations Law gives to a telephone corporation organized under it the right to “ erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways * * * within the limits of this State.” (Laws of 1890, chap. 566, § 102.) This is a franchise directly from the State to the corporation to use the public roads, streets and highways of the State for the erection and maintenance of its lines. (Barhite v. Home Telephone Co., 50 App. Div. 25.). But, as was said in the case cited, “ when a corporation of this kind is to avail itself of the legislative grant, the manner of its exercise, the location of its poles, the stringing of its wires, etc., are within the control and regulation of the local legislative body. That is one of the police functions committed to the municipality.”

That the right by a telephone company to use the public streets and highways for its purposes is subject to the reasonable control, supervision and regulation by the authorities of the municipality in which such streets and highways are located, by virtue of and as a part of the géneral police power, is well settled. (City of Rochester v. Bell Tel. Co., 52 App. Div. 6; City of Utica v. Utica Tel. Co., 24 id. 361; People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593 ; American Rapid Telegraph Co. v. Hess, 125 id. 641.)

The power is also given in express terms in the Village Law to the board of trustees of villages to regulate the erection of telegraph, telephone or electric light, poles, or the stringing of wires in, over or upon the streets.” . [Laws of 1897, chap. 414, § 89, subd. 9.)

The consent of the board of trustees to the erection of the poles and wires in the village of Glens Falls was also on condition that they should be erected “under the direction” of such board.

It being clear that, the franchise comes from the State and that the power to regulate the erection of the poles and wires in the streets of the village rests with its board of trustees, it is wholly immaterial whether the so-called franchise or consént granted by such board to the plaintiff has expired or not, so long as the resolution giving such consent in no way assumed to regulate, or to fix the places or manner in which such poles and wires should be erected.

So far we have agreed substantially with the learned referee who tried the case, but he went beyond this and put his decision dismissing the'petition upon the ground that the municipal authorities are necessary parties to, and entitled to notice of the proceeding under section 3361 of the Code of Civil Procedure. In this respect we think he was in error.

Section 3361 of the Code of Civil Procedure requires that the petition and notice of presentation thereof to the court “ must be served upon all the owners of the property at least eight days prior to its presentation,” and the term “ owner ” is defined by section 3358 of such Code to include “ all persons having any estate, interest or easement in the property to be taken.”

The property sought to be condemned here is in a public street. -The fee is in the defendant Marsh subject to the mortgage interest of the defendant West and subject to the easement and right of the public to use it as a street. The care and control of.highways under the common law was vested in the sovereign. In this State such care and control are in the sovereign people, and they speak by their representatives in the Legislature. Neither the village of Glens Falls nor its board of trustees has, as such, any estate, interest or easement in the property sought to be taken. They are not in any sense “ owners ” of such property within the meaning of. that term as used in section 3361 of the Code of Civil Procedure. The property to be taken is simply the right to impose an additional burden upon tlie property rights of the- owners of the fee, and the condemnation, if made, must be subject and subordinate, to the right of the public to use the street for street purposes. Nothing can be taken from the public by the proposed condemnation. The local authorities, notwithstanding snch condemnation, will, under the authorities above cited, still retain the right to control and regulate the use of the streets by the public and by those having franchises to occupy them.

No case has been called to our attention where it has ever been held that the municipal authorities were proper or necessary parties to a proceeding to condemn rights to impose additional burdens upon streets.

Wé think also that the plaintiff was authorized under section 102 of the Transportation Corporations Law to take proceedings to condemn the right to place its pole and lines in front of the defendant’s property. It sufficiently appears in the evidence that the property or right which the plaintiff seeks is for a public use and also that the plaintiff has failed to agree with, the owners upon the compensation to be paid therefor, and the section referred to provides in express terms that in case of such failure such compensation shall be .ascertained in the manner provided in the Condemnation Law.” (See Code Civ. Proc. §§ 3357-3384.)

It is difficult to determine from the petition whether the plaintiff is seeking to condemn the fee of sufficient ground upon which to erect its pole or only an easement. We think that all the plaintiff needs or can require for its purposes is an easement for its poles in the street and a right of way for its wires and that it should not be permitted to take the fee of any land in the street, but that is a matter which can be regulated by the j udgment, and the petition should not be dismissed because it asks for more relief than can properly be granted.

It does not appear here that the board of trustees, in the exercise of its right to regulate and control the erection of telephone and telegraph poles and wires in the streets, has ever approved the location of 'the pole and wires at the place in question. Ordinarily it would seem that it would be better if the exercise of that right should precede the institution of proceedings to condemn, yet as the consent of such board to the erection of a pole at a particular place or to the erection of wires in a specified way is but a revokable license and subject at all times to such reasonable changes and regulations as may be made by the municipality through its properly constituted authorities, we do not think that the failure to show that such consent has been given is of sufficient moment to stand in the way of proceeding by condemnation to procure the right or easement from the defendant to erect the pole and lines in question in front of her premises. ,

The judgment in the action which this plaintiff brought against West does not in our opinion stand in the way of the plaintiff’s right to condemn an easement in the street for its purposes. All that ease decided was that the.plaintiff had no right to maintain its pole and lines in the street in front of this property without the consent of the then owner of the fee and without acquiring the right so to do in a lawful way, which is altogether a different question from that presented here.

The judgment should be reversed, the referee discharged and a new trial granted,, with costs to the appellant to abide the event.

All concurred, except Houghton, J., dissenting. .

Judgment reversed, referee discharged and new trial granted, with costs to appellant to abide event.  