
    Eels v. American Telephone & Telegraph Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    1. Highways—Occupation by Telegraph Poles—Right op Owners op Pee.
    Laws 1848, c. 265, as amended by Laws 1853, c. 471, which, gives the consent of the state, to the erection of telegraph poles in highways, was only intended to protect telegraph companies from indictment for maintaining a public nuisance in so doing, and gives them no right to erect such poles without the consent of the owners of the fee in the highways.
    2. Same—Additional Burden.
    The occupancy of a highway by the poles of a telegraph or telephone company is not one of the ordinary and legitimate uses for which highways are established, and is the imposition of an additional burden on, and the taking of, the property of the owner of the fee, which enables him to maintain an action to compel the removal of the poles, and to recover possession of the premises occupied thereby, with damages, where such occupancy is without his consent, and without compensation having been previously made him therefor.
    Appeal from circuit court, Erie county.
    Action by Charles Eels against the American Telephone & Telegraph Company to compel defendant to remove its poles from a highway in which plaintiff owned the fee, and to recover possession of the premises occupied thereby, with damages. From a judgment in plaintiff’s favor, defendant appeals. Affirmed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Sherman S. Rogers, for appellant. John M. Hull, for respondent.
   Lewis, J.

The plaintiff is the owner in fee of a 25-acre farm in the town of Alden, bounded on the north by a public highway known as the “Cayuga Creek Road. ” His titlé. extends to the center of the road. This creek road is an ordinary country highway. The defendant is a long-distance telephone company, incorporated under the laws of the state of Hew York for the incorporation of telegraph companies. In the month of August, 1888, defendant was engaged in the location and construction of a telephone line along said highway from Batavia' to Buffalo. In constructing said telephone line, defendant placed in front of plaintiff’s farm, on the Southerly side of said highway, 12 telephone poles, without the license or consent of the plaintiff. This action was thereupon commenced to compel the defendant to remove said poles, and to recover possession' of the premises occupied thereby, with damages, etc. At the close of the evidence, the court instructed the jury that the plaintiff was entitled to a verdict, for the recovery of the premises from the defendant, with damages for the detention thereof, and that the only question for them to determine was the amount of damages. Defendant’s counsel excepted to the instructions thus given, and the jury thereupon found a verdict for the plaintiff for the recovery of the possession of the premises, with $18 damages for their detention. The appellant contends that chapter 265, Laws 1848, as amended by chapter 471, Laws 1853, gave the defendant the right to place its poles in the highway in front of the plaintiff’s premises without his consent, and, unless this contention can be maintained, the defendant’s counsel concedes that the case was properly disposed of at the circuit. The state has a general supervision over the highways, and by the acts above referred to gave its consent to the defendant to use the highways of the state with its poles and wires. Were it not for this legislation, the telegraph and telephone companies would be liable to an indictment as for a public nuisance if they placed their poles in the highways. The acts referred to protected them to that extent, and no more. The state had not the power, and did not assume, to give the companies the right to erect their poles in the highways without the consent of the owners of the fee in the highways. If the occupancy' of this highway by the defendant’s poles is one of the ordinary and legitimate uses for which highways are established, the defendant is right in its contention. Highways are established to accommodate the public in traveling and transporting their property from place to place by any safe and proper means of communication that the traveler may choose to adopt, provided the means employed are open to be adopted by all who wish so to do. Any proper carriage propelled by electricity, steam, or animal power may be used, if, after the vehicle has passed over the highway, it is left free and unobstructed, so that any other citizen can use it for like purposes. If means for traveling are adopted, the use of which necessitates appliances in the highway of a permanent character, and the use of which is private and exclusive, that would be an inconsistent and improper use of the highway, and would impose an additional servitude upon the fee. If the placing of permanent appliances in the highway which are under the control of corporations or individuals were tolerated, the time might soon come when the highways of the country would be practically monopolized by inventions for the transportation of persons and property. Ho reason is suggested for the contention of the appellant which does not with equal or even greater force apply to a claim for the use of highways by steam railroads. The defendant’s poles and wires are placed in and along highways for the use of the public in conversing with each other from distant points, for a consideration to be paid therefor to the defendant. Eailroad companies not only provide the public with rapid'means of communication with each other, but they also transport people and property from place to place; they perform substantially all the functions of the ordinary conveyances in use upon the public highways; and yet it is the settled law of this state that the appropriation of any part of a highway by the ties and tracks of a railroad is the imposition of an additional burden upon, and the taking of, the property of the owner of the fee, within the meaning of the constitution, which forbids such taking without compensation. Williams v. Railroad Co., 16 N. Y. 97; Wager v. Railroad Co., 25 N. Y. 526; Craig v. Railroad Co., 39 N. Y. 404. In a note to section 111 of Lewis on Eminent Domain, many authorities maintaining this doctrine as to railroads are cited. It is said in section 131 of this work that the lines of a telegraph or telephone company are on the same footing as a steam railroad. They form no part of the equipment of a public highway, but are entirely foreign to its use. When the fee of the street is in the abutting owner, he is clearly entitled to compensation for the additional burden placed on his land. Authorities are referred to in a marginal note to this section sustaining the doctrine of the text. To the same effect are Dusenbnry v. Telegraph Co., 11 Abb. N. C. 440; Metropolitan, etc., Co. v. Colwell Lead Co., 67 How. Pr. 365; Blashfield v. Telegraph Co., (Sup.) 18 N. Y. Supp. 250. There are authorities in some of our sister states sustaining the contention of the defendant. The great weight of authority, however, is in accord with the decisions of the courts of this state. By placing its poles in the highway in front of the plaintiff’s premises, the defendant imposed an additional servitude upon the highway, and thereby gave to the plaintiff a right to maintain this action. The judgment appealed from should be affirmed. All concur.  