
    Richard A. Gray and Others, Respondents, v. York State Telephone Company, Appellant, Impleaded with the Eastern Electrical Construction Company.
    
      Telephone poles on a rural highway — they constitute an added burden on the fee thereof— injunction.
    
    The erection of a telephone line on a public highway, not within the bounds of a city or village and the fee of which is in the abutting owners, imposes an added burden upon the highway and if the telephone company attempts to construct the line without obtaining the consent of the abutting owners, or instituting condemnation proceedings, the abutting owners are entitled to injunctive relief.
    • Appeal by the defendant, the York State Telephone Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 1st day of August,, 1903, upon the decision of the court, rendered after a trial at the Broome Special Term, awarding the plaintiffs a perpetual injunction.
    Plaintiffs are the owners of certain real property situated in the town of Union, county of Broome, containing 140 acres, together with the highway adjoining said real property, subject only to the right of the public therein for highway purposes. The defendant, the York State Telephone Company, is a domestic corporation organized under the Transportation Corporations Law (Laws of" 1890, chap. 566), and owns and operates a telephone system and telephone exchange in the cities of Binghamton and Elmira respectively. Said defendants are erecting poles and constructing a line of telephone wire between the city of Binghamton and the- city of Elmira for the purpose of connecting and extending the business of said defendant York State Telephone Company.
    In February, 1903, negotiations were had between the defendants and plaintiffs relating to the purchase of a right of way by the defendant York State Telephone Company for its telephone poles and wires over the said highway, the fee of which is owned by the plaintiffs, but they were unable to agree upon the compensation to be paid therefor. Defendants then attempted to construct its line over said highway so adjoining the plaintiffs’ real property, and -when the defendants had the-telephone poles in part erected this action was' commenced, and the defendants were enjoined from -erecting and maintaining and operating a telephone line across said premises, and from taking or attempting to take or hold possession -of any part of plaintiffs’ said property, and from erecting a telephone line thereon, and from digging holes, placing cr'ossarms and .■stretching wires on said poles, and from doing any other act on said premises tending to incumber them or to prevent the free and unobstructed use.thereof by the plaintiffs as they were theretofore used -and enjoyed by them. An answer was served by the 'defendants, ■and after a trial of the issues joined thereby judgment was directed and entered permanently enjoining the defendants from erecting and maintaining its poles and line oh and over said property, from which judgment this appeal is taken. The highway is a rural public highway, and not within the bounds of a city or village.
    ■ Roberts, Tuthill & Roger's [Theodore R. Tuthill of counsel], .for the appellant.
    
      Robert B. Richwds [Richwd H. Thurston of counsel], for the respondents. '
   Chase, J.:

The appellant contends that erecting telephone poles in a rural ■public highway and' stringing wires thereon is not an added burden to the owners of. adjoining real property, having -the title to the fee ■of the highway within the bounds of which the poleá are set and -over which the wires are run.

. A discussion, of the subject in this court seems unnecessary, for the reason fhat the Court of Appeals in Eels v. A. T. & T. Co. (143 N. Y. 133) has clearly held against the appellant’s contention. The material facts in that case are very similar to the facts in this case, -and the .court in that case held that a telephone and telegraph company had no right to appropriate a public highway to its own special ■and continuous' use by erecting poles therein and stringing wires .thereon without the consent of the owner of the fee of the highway, -and without acquiring the right so to do by condemnation proceedings. (See, also, Peck v. Schenectady R. Co., 67 App. Div. 359; S. C., 170 N. Y. 298; Paige v. Schenectady R. Co.,77 App. Div. 571.)

An.injunction may be issued at the suit of the owners' of the fee of a highway to prevent persons or corporations from erecting a telephone line on and over the same for continuous and permanent Use. (Paige v. Schenectady R. Co., supra; Peck v. Schenectady R. Co., supra.)

Even if the court has a discretion in regard to granting an injunction in a case where the facts are substantially undisputed, such discretion in this case has. been exercised by the Special Term in favor of granting the injunction, and there is nothing before us to show that such discretion was improperly exercised or abused.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  