
    Samuel W. Andrews, Plaintiff, v. The Delhi & Stamford Telephone Co., Defendant.
    (Supreme Court, Delaware Special Term,
    September, 1901.)
    Ejectment — To remove a telephone line running along a country highway —Adverse possession — Presumption of grant — Prescription — Consent — L. 1886, ch. 40.
    The right forever to maintain a telephone line along a country highway is not established as against an abutting owner by proof of the •company's peaceable superficial possess! on of its route for more than twenty years, as in such case no lapse of time raises a presumption •of grant or prescription of any perpetual right. (L. 1886, ch. 40.)
    
      Where, by a change in the route of the highway, the telephone line is left on and is a detriment to the land of an abutting owner, he may maintain ejectment to procure its removal, and where the company fails to prove in the action that his mesne grantor and source of title ever consented in writing to the establishment of the line originally and the company claims no other consents, the plaintiff is entitled to judgment for a removal.
    Action of ejectment.
    C. L. Andrus, for plaintiff.
    O’Connor & O’Connor, for defendant.
   Fobbes, J.

This is an action of ejectment, brought for the purpose of removing’ from the plaintiff’s land certain telephone poles and wires, and to restrain the further use and occupation by the defendant of the plaintiff’s premises, with the defendant’s said line, now in operation between the villages of Stamford and Delhi, in the county of Delaware. '

These poles and wires were erected in the year 1816, and the line has been in the occupation and use by the defendant, as a telephone and telegraph line, since that time. The poles were erected and the line was strung along the public highway upon the premises owned and occupied by the plaintiff and liis grantors.

The plaintiff desiring to make improvements on said premises, in the vicinity of his residence, procured the consent o^ the proper town authorities of his town for leave to change the location of the highway; to straighten an angle in said highway in front of his premises. The highway was thereupon changed, and the plaintiff commenced to improve and ornament said premises in the vicinity of his house; laying out a lawn and private approaches; planting shade trees, grading, ornamenting and adorning the premises in question as a country summer residence.

The highway originally ran very close to the farm buildings, and, as the highway was then situated, it afforded very little opportunity for lawns, paths and ornamentation. After the road was changed, the defendant’s telephone line ran directly through the lawn and close to the defendant’s dwelling-house, uptin said premises.

The plaintiff sought to have the defendant remove its line to some more convenient location. This the defendant refused to do, except upon certain onerous conditions imposed by him. This action was brought by the plaintiff to compel the removal from his premises of said line and the poles upon which "the wires are strung.

The defendant claims that, the line having been erected and used for more than twenty years, and peaceably occupied by the defendant company, the defendant has acquired title to the location in question; first, by original consent; subsequently, by adverse possession.

There is no direct evidence in this case to show that consent was originally given for the erection of the poles and the stringing of the wires thereon by defendant corporation. It is claimed by the defendant corporation that it has been in open, actual notorious possession of that portion of the premises used by it, during all of the time since 1876, under a claim of title adverse to the plaintiff and his grantors; and that from such occupation the presumption arises that the defendant originally did have a license to- erect its poles and lines in the public highway upon and along the premises in question.

We must take the situation as we find it. It is a principle of law that permission cannot be inferred from a superficial occupation of another’s premises. Wiseman v. Lucksinger, 84 N. Y. 31; Long Island R. R. Co. v. Garvey, 159 id. 334.

The presumption rather is that the occupation was and is subordinate to the rights of the person having the actual title to, and being in possession of, such premises. Winne v. Ulster Co. S. Inst., 37 Hun, 349; Broiestedt v. South Side R. R. Co., 55 N. Y.. 220; Bliss v. Johnson, 94 id. 235; Doherty v. Matsell, 119 id. 646; Heller v. Cohen, 154 id. 299; Archibald v. N. Y. C. & H. R. R. R. Co., 157 id. 574.

Adverse possession cannot be obtained against the owner in fee, except by one having a claim of title. Broiestedt v. South Side R. R. Co., 55 N. Y. 220; Wiseman v. Lucksinger, 84 id. 33; Heller v. Cohen, 154 id. 299; Archibald v. N. Y. C. & H. R. R. R. Co., 157 id. 574; Cutting v. Burns, 57 App. Div. 185.

Assuming that the defendant had acquired its charter from the Legislature of the State, to run its line along the public higlrway, still the Legislature had no poAver to grant to the defendant title in the premises, nor could the Legislature impose upon the premises an additional burden, without the consent of the owner in fee. Eels v. Am. Telephone & T. Co., 143 N. Y. 133; Coatsworth v. Lehigh Valley R. Co., 156 id. 451; Palmer v. Larchmont El. Co., 158 id. 231.

The poles and wires having been erected in a public highway, outside of a city or village, the Statute of Limitations does not run against the title of the real owner and occupant of the premises, and the bar of the statute does not apply. Laws of 1886, chap. 40; Galway v. Metropolitan E. R. Co., 128 N. Y. 132, and authorities next above cited.

If it could be assumed that a parol permission was ever granted "to the defendant corporation by the original owner of said premises, when the written conveyance was made from that owner to the plaintiff’s grantor, that deed revoked the license or the permission so given. A parol license conveyed no title to the premises in question. Greenwood L. & P. J. R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435; Trustees v. Jessup, 162 id. 122.

The present form of action and proceeding, on the part of the plaintiff, is proper. Galway v. Metropolitan R. R. Co., 128 N. Y. 132; Coatsworth v. Lehigh Valley R. Co., 156 id, 451.

There is a broad distinction made in the application of the law permitting the erection and maintenance of telephone, telegraph and electric light poles and lines, in a city or a large village, from the rule applied to the erection of those lines upon a country highway. This will be readily seen by an examination of the authorities cited.

The relief demanded in the complaint must, therefore, be granted and a proper judgment entered in favor of the plaintiff against the defendant, with the costs of this action. The plaintiff having consented, on the trial, to take nominal damages in case of recovery, the damages are hereby fixed at six cents.

A decision, with findings of fact and conclusions of law, may, therefore, be prepared, and judgment is directed accordingly.

Judgment accordingly.  