
    Jarvis R. Bowerman, Respondent, v. Inter-Ocean Telephone and Telegraph Company, Appellant.
    Fourth Department,
    July 9, 1907.
    Contract.— license to erect telegraph poles construed,
    A license by a landowner permitting a telegraph company to erect poles on lands along the highway “to'be set on'line of fence ” will not be construed to require the poles to be placed on the exact fence line when it would involve an unnecessary destruction of valuable trees, ■
    Williams, J., dissented. .
    Appeal by the defendant, the Inter-Ocean Telephone and Telegraph Company, from a- judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of January, 1907, Upon the decision, of the court rendered aftér a trial at the Monroe Trial Term, a jury having been waived, directing that the- defendant remove certain poles and wires erected and strung upon and .along the plaintiff’s, premises.
    
      Edward Hance Letchworth, for the appellant.
    
      Jay K. Smith, for the respondent.
   Spring, J.:

The plaintiff is the owner of a farm in the' town of Mendon in the county of Monroe, extending to the center of the highway. He executed to the defendant a permit authorizing it to erect its ' telephone poles and maintain its lines along such' highway, receiving therefor five dollars.. The written' permit provided that the poles were “to be set on line of fence,” which extended for two-.thirds of the farm frontage. •

The defendant in pursuance of this license erected in the road along the plaintiff’s premises seventeen' of these poles, placing them in a straight course, but from five to seven feet from the fence line.' Along this line there were several large trees, and if the poles had been erected in strict compliance with the agreement it would have been necessary to trim these trees, seriously impairing their value and usefulness. It is obvious that the parties did not intend that the poles were to be set absolutely on the line of. the fence. -

The plaintiff testified-: “ On the line of the fence or very close to it there are a number of trees some of which are large. I did not mean that the company should take down the fence when 1 signed an agreement permitting it to erect its poles on the line of the fence. If poles had been set absolutely on the line of the fence it would have involved cutting, these large trees sez-iously. I did not intend to have the poles set in such a manner as to destroy the trees utterly. They were to set them — they were to pay for thezn.”

The preservation of these shade trees was a subject to be considered in the location of this telephone line, and the poles were to be erected and the wires strung to reduce the injuries so far as reasonably possible. The land alozzg the roadside was uneven for a eonsiderable part of the way, evidently producing but little.

In construing a permission or agreement of this character the surroundings are important in deterznining what' the parties intezided by it. In view of the circumstances refereed- to we think- the defendant substantially fulfilled, the requirement that the poles should be set on the line of the fence. - So far as we can gathez; from the evidence, in their present location they do as little injury to the farm as if placed anywlzez-e else along the side of the road, and certaizily far less than if they had beezi erected stidetly as stipulated in the agreeznent..

The animus of the. plaintiff’s actiozi znay be found izi his statement that the defendant was to pay for these trees, although their destruction or serious injury was not within the contemplation of the parties wliep:.the perzu.it was granted.

The judgment should be revez'sed and a new trial granted, with costs to appellant .to abide event.

■All concurred, except Williams, J., who dissezited; Hobson, J., not sitting.

Judgznent reversed and new trial .ordered, with costs to the appellant to abide event, upon questions of law and fact.  