
    George Anson, Appellant, v. W. Fobes et al., Appellees.
    TELE GRAPHS AND TELEPHONES: Private Wires. One who has acquired from a telephone company the right to have his private telephone wire carried upon the company’s poles, may not complain, of a change in the location of the wire on the poles, so long as the substantial efficiency of the wire is not impaired.
    
      Appeal from Garroll District Gowrt. — E. G. Abbert, Judge.
    October 18, 1918.
    The material facts, so far as discoverable from the printed record, are stated in the opinion. There was a verdict for the defendant, and from the judgment entered thereon, the plaintiff appeals.
    
    Affirmed.
    
      Brown McCrary, for appellant.
    
      Lee & Robb, for appellees.
   Weaver, J.

The pleadings in this case are obscure, and the facts disclosed by the abstract of testimony are scarcely less so. Calling to our aid the charge of the court, and the apparent concessions of counsel on both sides in the course of their argument, the following. essential facts are found, to a reasonable certainty. The petition is in the following words:

“For cause of action, plaintiff states: That he owned and was in peaceable possession of the right and wire located upon what is known as the North Goon Telephone Company, running out of Glidden, Iowa, north to plaintiff's farm. That the defendant, the North Coon Telephone Company, does business under said name, as herein alleged, that said defendant, W. Fobes, and said North Coon Telephone Company did in 1915, forcibly and without power or right, tear down, destroy and convert to their own use the wire and line right of this plaintiff to his great damage of $150, no part of which has been paid. Wherefore plaintiff prays judgment for $150.”

The answer admits that plaintiff “owns a wire attached to the poles of the North Coon Telephone Company,” and denies all" other allegations of the petition.

From an examination of the entire record, as above indicated, there is shown a situation about as follows: Some years before this action was begun, the plaintiff, owning a farm several miles from the town of Glidden, desired to secure telephone connection with that place. For a part of the distance, the North Coon Telephone Company, an unincorporated association of farmers, had constructed and was maintaining a line of poles, on which were strung several wires. Plaintiff applied to the company for leave to attach his wire to the company’s poles; and a written contract was entered into, by which, in consideration of plaintiff’s undertaking to attach certain cross-arms to the poles, and pay his pro rata share of the expense incurred for keeping the poles and cross-arms in repair, the company agreed to give him “a one-line right on their poles.” Upon some of the cross-arms were five pegs, and upon others, six pegs; and plaintiff’s wire, as first placed, was attached to the “inside peg,” by which, we understand, is meant the peg nearest the middle of the highway. At a later date, he or Ms tenant disconnected his phone from this line, and, for a period of three years, more or less, maintained connection with Glidden over another line; but Ms wire on defendant’s pole was not removed by him. Still later, when he contemplated “changing back” to the old connection, he says he examined Ms wire on these poles, and it was in place and in order. Shortly before this action was begun, he says he discovered tliat his line “would not work;” and, on examination, found that the wire had been cut, near the point where the connection with defendant’s line of poles had been made, and that there was a new wire on the pegs which had before been occupied by Ms wire. He nowhere says that Ms wire was not on the poles; but, taking his whole story together, in the light of the entire record, so far as any light can be derived from it, the whole trouble seems to be, not that this wire, which he had not used for three years, had been taken down or destroyed, or that it had been converted to the nse of other persons, but that its location on the poles had been changed.to another line of pegs; and it is his sacred right 'to the perpetual possession and use of the original pegs which the courts have been called upon to vindicate; though of all this, no suggestion is found in the pleadings. The only evidence of damages sustained is the plaintiff’s statement that the “value of the thrée miles of the ‘right’ with the line of wire is $75, and the value of it from the farm is $150.” But the defendants do not deny his right to maintain a line on their poles, and we think it must be said that there was an utter failure of proof of any substantial injury to the defendant, to his wire, or to his right to maintain the same on defendant’s poles. The court, however, did charge the jury that, if they found that defendants had removed the wire from the pole or destroyed it, plaintiff should have verdict for its value; but, if they found that the wire was still on the poles, and, so far as anything defendants may have done was concerned, was ready for plaintiff’s use, then he could not recover. This was as favorable to plaintiff as he could possibly ask, under the issues; and upon that question, the jury found against him.

Plaintiff’s claim of right to recover for what counsel call the “invasion” of his right — by which we assume he means the changing of thé location of the wire on the pegs without his consent — was not submitted to the jury; and, as there was no evidence that plaintiff sustained any damage by such alleged invasion of his right, the error in refusing to submit it is without prejudice. But we think there was no error. Plaintiff did not own and does not claim to own the poles or the line of pegs to which his line was attached, but insists that he acquired an easement therein, and that this easement has been wrongfully interfered with, and that this gives him a right of recovery. But his contract gave Mm no easement, in any proper sense of the word; or, if we grant his right to an easement, he still has it, unimpaired. Defendants did, upon certain considerations, grant him a “one-line right” on the poles of the defendant company. In other words, he acquired the right to have his wire carried on or supported on defendant’s poles; but there was no grant of any particular or specified line of pegs, and, so long as his wire was maintained on those poles, ready for his use whenever he saw fit to connect it with his phone, his “one-line right” is not lessened or destroyed ; or, to use the word wMch his counsel seems to prefer, 'there is no “invasion” of his so-called easement. The unreasonableness of plaintiff’s clMm is too evident to admit of much discussion. Having acquired the right, and constructed his line, he saw fit to abandon — at least, to suspend — the use of it for three years; and if, meanwhile, the defendants found it a matter of convenience, in the care of their telephone system, to change the location of the unused wire to another line of pegs, or if, in adjusting their poles and cross-arms to accommodate an increase .in the number of wires carried, or for any other reason, they made such change, without any substantial interference with the efficiency of the wire when properly connected, they were, in our judgment, entirely within their rights in so doing.

Assuming, as we must, under the charge of the court, that the jury not only found against the plaintiff on the claim that his wire had been taken away or destroyed, but found, as well, that his wire “is still on the poles, and, so far as anything the defendants may have done, is ready for his use,” every fact upon which a recovery of damages could be sustained is conclusively negatived, and there is nothing in the record of which he can justly complain. The judgment appealed from is, therefore, — Affirmed.

Preston, C. J., Gaynor and Stevens, JJ., concur.  