
    RIGHT OF TELEPHONE COMPANIES TO USE STREET.
    [Probate Court of Hamilton County.]
    The Fitzsimmons Telephone Co. v. The City of Cincinnati and Three Other Cases.
    Decided, April 2, 1904.
    
      Telephone Company — Right of to Use of Street — A Matter of Legislative Grant — Mode of Use Only — Under Control of Municipal Authorities or the Probate Court — Right Extends to Any and AH' Streets — Character of Structures — Pleading.
    1. A telephone company has the right by direct legislative grant to use any and all streets within a municipality; it is the mode only of such use that is subject to agreement with the municipal authorities or of judicial determination.
    2. The streets and public ways being subject to this easement, it is not necessary that a petitioning company should set out what streets, alleys or public places it proposes to occupy; neither is it required to set forth the character of poles or structures or conduits it proposes to use, but the character of the construction will be specified by the court in its decree.
    Nippert, J.
    A motion has been filed in each of the above eases asking that the petition of the plaintiffs, the telephone companies, be made more definite and certain, and requesting the court first to order them to set out what streets, alleys and public ways plaintiffs propose to occupy with their poles, wires, underground conduits and other structures.
   We must not forget that it is not the right to use the streets that is made the subject of agreement beween the companies and the municipal authorities or of determination of the court; that right is granted directly by the Legislature; it is only the mode of such use that becomes the subject of agreement or judicial determination.

The petitions are based on Section 3461, which reads as follows:

“When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or othefi public use, within the limits of any- city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley or public way, so as not to incommode the public in the use of the same, but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley or public way beyond what may be necessary to restore the pavement to its former state of usefulness. ’ ’

Theodore Horstman, Pogue & Pogue, C. B. Matthews and Bowel Crosley, for plaintiffs in error.

Charles J. Hunt, City Solicitor,- for defendant in error.

If the municipal authorities and the telegraph or telephone companies can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court court, in a proceeding instituted for the purpose, shall direct in what mode such telegraph or telephone lines shall be constructed along such street, alley, 'or public way, so as not to incommode the public in the use of the same.

What is meant by along such street, alley or public way? The first sentence of the section explains the clause “such street, alley, or public way;” along any street, alley or public way to the easements of which lands authorized to be appropriated are subjected. It means along every and all streets of the city.

As soon as land, by dedication or appropriation or by any other method, becomes a street, alley or public way, it is subjected to the easement; and the court does not find it necessary for the petitioners to set out what streets, alleys or public ways they propose to occupy.

The two other grounds for the motion can not by the court be considered as well taken; it is an impossibility for a company to give the exact location of all proposed poles, wires, conduits and other structures; neither can the company set forth the character of the poles or wires to be erected, or of the conduits and other structures proposed to be built; the court has to order the company in what mode they shall construct their lines, and the court in specifying will prescribe the character of their structures.

The motions are hereby overruled.  