Iowa Railway & Light Corp. v. Lindsey

AlbeRt, J. The plaintiff is an Iowa corporation, engaged in the business of generating, transmitting, distributing, and selling electricity for light, heat, and power purposes. It filed a petition with the board of railroad commissioners for a franchise to construct a 6,600-volt transmission line on a highway in Greene County. The petition, as required by law, was accompanied by certain specifications as to material, manner, and method of construction, which provided, among other things, for a 6-foot and 7-inch cross arm on the poles, for the purpose of carrying wires conducting electrical energy. There is no question as to the regularity of this proceeding, which resulted in the granting of the prayer of the petition of the defendant and the issuing of a franchise accordingly, which, so far as material, reads as follows: “This franchise is issued and permission and authority thereunder are hereby granted unto the above-named Iowa Railway & Light Corporation to erect, maintain and operate a 6,600-volt line for the transmission, distribution, use and sale of electric current outside cities and towns, and for such purpose to erect, use and maintain poles, wires, guy wires, towers, cables, conduits and other fixtures and appliances necessary for conducting electric current for light, heat and power over, along and across any * * * highways, along a road particularly dé-scribed as follows:’' (Here follow a description of the highway along which this line was to be built, and also a designation on *546 which side of the highway the line was to be constructed, the length of the line being approximately 5% miles.) The franchise further provides that it is subject to the provisions, conditions, and requirements of Chapter 383, Code, 1924, and to all of the provisions, rules, and regulations of the board of railroad commissioners as now exist or may be hereafter ordered or required, and the board of railroad commissioners is to retain jurisdiction and may at any time make such further orders and regulations as may be necessary, and as said board may authorize by law. The county engineer designated the location of the poles of this line at a point one foot from the line which marks the boundary between the highway and the adjoining property. The plaintiff was constructing, or starting to construct, its line by placing poles at a point four feet from the line between the highway and the adjoining property. Some elementary principles in relation to this matter are well settled. Primarily, the right to establish, regulate, and control highways rests in the stater It is equally true that the state has the right to delegate such powers to boards, commissions, public or municipal corporations. Originally, these rights were all delegated to the boards of supervisors of the respective counties of the state, but later, the power of the boards of supervisors respecting the construction and maintenance of primary roads was vested in the state highway commission. Chapter 101, Section 8, Acts of the Forty-second General Assembly. No one would dispute the proposition that the primary purpose of establishing and maintaining highways is for the benefit of the general traveling public; but whether the highways are those established by direct act of the legislature, as they were in the early history of the. state, or by bodies or commissions or corporations authorized so to do by the state, it (the state) yet has a reserve right over the whole subject, by which it may enlarge, reduce, or take away any powers thus conferred. The legislature of this state has seen fit, in the exercise of this right, to grant to telegraph and telephone companies the right to construct their lines upon the highways within the state, and this power has been enlarged to include electric transmission lines. With the wisdom of this legislation (allowing highly charged *547 electric lines to be constructed upon the highway) we have no concern, as that rests within the sound discretion of the legislature. The legislature later created a board of railroad commissioners, and conferred upon it the power of determining whether or not high-tension transmission lines should be placed upon any of the highways of the state. The board is given a discretion to determine this question, and their determination is final, unless appealed from. See Section 7874, Code, 1924, where the board of railroad commissioners is given “general supervision of * * * all lines for the transmission, sale, and distribution of electrical current for light, heat, or power, except in cities and towns. ’ ’ Under Section 8309, Code, 1924, all such companies are prohibited from erecting, maintaining, or operating any of these lines without first procuring a franchise. As provided by Chapter 383, Code, 1924, they acquire this franchise by the filing of a petition, in conformity with Sections 8310 and 8311. Upon the filing of this petition, the railroad commissioners are required to fix a date, and to publish notice to the citizens of each county through which the proposed line or lines will extend. Section 8313 provides that “any person, company, city, town, or corporation whose rights or interests may be affected, shall have the right to file written objections to the proposed improvement or to the granting of such franchise,” and that, after being fully advised in the matter, the board of railroad commissioners “may grant such franchise in whole or in part upon such terms, conditions, and restrictions, and with such modifications as to location and route as may seem to it just and proper. ’ ’ It is obvious, -therefore, from this enactment that the board of railroad commissioners has the power to grant the franchise, specifying the terms, conditions, and restrictions thereof, and designating the location and route of these lines, as they may deem just and proper. Any person is given the right to appear before the board on such hearing, and file written objections to the proposed improvement or the granting of such franchise. No objections appear to have been made in the instant ease, and we turn to the requirements of the statute as to what was legally included in the franchise. Section 8310 says, among other things, that they may peti *548 tion for “a franchise, to erect, maintain, and operate a line or lines for the transmission, distribution, use and sale of electric current outside cities and towns and for such purpose to erect, use and maintain poles, wires, guy wires, towers, cables, conduits, and other fixtures and appliances necessary for conducting electric current for light, heat, or power over, along, and across any public * * * highways.” It is quite apparent, therefore, from this section that the franchise covers more than simply the line of poles, because it so specifies in terms. It follows necessarily, therefore, that the board of railroad commissioners had the power to grant this franchise for the erection of this transmission line, and upon the terms, conditions, restrictions, and limitations therein set out. It also had power to designate the route and location of this line which it did. It is provided in Section 8313 that the board of railroad commissioners may examine the proposed route, or cause an engineer selected by it to do so, and it may grant such franchise, in whole or in part, upon such terms, conditions, and restrictions, and with such modifications as to the location and route as may seem to it just and proper; and such franchise, according to Section 8314, shall be subject to such rules, not inconsistent with the statute, as the board of railroad commissioners may establish from time to time. By • Section 8318 the board is required to keep a record showing all franchises granted, and to whom issued, with a general statement of the location, route, and termini of the line or ■lines covered thereby. It is to be noticed that this chapter of the Code (383) is headed “Electric Transmission Lines,” and from a study of all of the sections it is apparent that they all purport to deal with electric transmission lines. ■Chapter 174, Acts of the Thirty-fifth General Assembly (Sections 2120-n to 2120-t, inclusive, Code Supplement, 1913), was approved April 11, 1913, and published April 16, 1913. Many of the electric lines in the state were built and operated before 1909, when the board of supervisors was given power to locate these lines. A state highway commission was created by Chapter 122, Acts of the Thirty-fifth General Assembly, and Section 18 thereof (Section 1527-sl7, Code Supplement, 1913), provides, among *549 other things, that the “comity and township boards, charged with the duty of improving public highways, shall have power to remove all obstructions in the highways nnder their jurisdiction, bnt fences and poles used for telephone, telegraph or other transmission purposes, shall not be removed until notice * * * to the owner,” etc. It further provides that “any new lines, or parts of lines hereinafter constructed, shall be located by the engineer.” This act was approved April 3, 1913, and published April 9, 1913. As between these two acts, it is apparent that both were passed by the same general assembly, but the act conferring the powers upon the railroad commissioners was the later expression. By Chapter 410, Acts of the Thirty-seventh General Assembly, the former act, Section 1527-sl7, Code Supplement, 1913, with reference to location by the engineer, was amended, by adding thereto a provision that written application should be filed with the county auditor, describing the highways upon which such lines, or parts of lines, were to be constructed, etc. It might be noted, in passing, that this section of the statute (now appearing as Section 4838, Code, 1924), is related to Sections 4834, 4835, 4836, and 4837, all of which deal with and refer to transmission lines. The real contention in this case is whether or not the county engineer had the right to disregard all the rights acquired by this electric company under its franchise from the board of railroad commissioners, and to locate the poles of this transmission line so that a part of the construction will overhang adjoining land; or can the two statutes be so construed as to reach a harmonious result? If not so, which shall govern? Much testimony was introduced on both sides relative to the wisdom and expediency of the location of this electric line at the point designated by the county engineer; but, as we view the question, this is wholly immaterial. Many of the matters now made the basis of justification for putting this line within one foot from the fence are matters which, if material, should have been raised by objection when the matter was on for hearing before the board of railroad commissioners, and are not available to defendants in this proceeding. One of the inducements which led the legislature to grant *550 the right to construct these public utilities on the highways was undoubtedly the fact that it saved them the expense of condemning and paying for a right of way for their lines, and by so doing, made the purchase price of electric current less to the public than it would be, were the companies compelled to expend vast sums in acquiring a right of way for their improvements. A careful reading of all of the statutes touching upon this proposition shows that the subject dealt with is electric transmission lines. It goes without saying that the term “transmission linos” consists of more than poles, and the very wording of the statute above quoted shows that the legislature contemplated, in the use of this term, not only the poles, but the wires, guy wires, towers, cables, conduits, and other fixtures and appliances necessary for conducting electric current. As a part thereof, these poles carry cross arms over 6 feet in length, which, of 'course, would extend over 3 feet on either side of the center of the pole which supports them. The specifications filed with the railroad commissioners show this manner of construction, and the same were approved by them, and authorization for such construction was included in the franchise. The legislature empowered the railroad commissioners to authorize the construction of these electric transmission lines on the highway, and we can reach no other conclusion than that, when the railroad commissioners granted the franchise, the plaintiff thereby derived authority from the legislature to place all of its lines within the boundary of the highway. It would be no authority whatever for them to so construct their line that part of the same overhung the adjoining property. ¥e think this is perfectly clear under the statute with reference to the power of the railroad commissioners, and they were acting wholly within their jurisdiction when they so authorized the construction of this electric transmission line on this highway. We are re-enforced in this conclusion by the exact wording of the statute (Section 8309, Code, 1924), which uses the words “over or across any public ■highway or grounds outside of cities and towns. ’ ’ Section 8310 provides for the asking of a franchise for constructing these lines “over, along, and across” any public highway. Section 8311 requires “a general description of the public * * * highways * =i' * over, across, or along which any proposed line will pass.” Section 8312 provides for a notice which *551 shall give “a general description of the lands and highways to be traversed by the proposed line or lines.” Section 8313 provides for the duty of the board and for the issuance of a franchise granting in whole or in part “upon such terms, conditions, and restrictions, and with such modifications as to location and route as may seem to it just and proper.” Section 8316 prohibits this franchise from giving exclusive right to any person, etc., “to conduct electrical energy, or to place electric wires, along or over or across any public-highway or public place or ground.” Under Section 8318, the railroad commissioners are required to keep a record, and, among other things, a general statement of the location, route, and termini of the transmission line or lines covered by the franchise. It is obvious from the statutes, therefore, that the legislature has dealt with this question of electric transmission lines as an entity, treating the poles, cross arms, wires, guy wires, etc., as constituting the “line;” and secondly, it intended, and in fact says, that the board of railroad commissioners may authorize the construction of a line upon a highway. To our minds this means but one thing: that is, the whole of the line, together with the necessary structure and attachments, is to be placed within the confines of the highway. It is urged that a certain method of construction, which the defendant claims is impracticable, could be made, by which the whole of the line would be within the* confines of the highway. This question is wholly beside the issue, because the railroad commissioners authorized the method of construction which is being carried out by the company, and we are not concerned with some possible construction other and different from that which is authorized by them. This question might have been-raised before the railway commission, but is immaterial here. It is insisted, however, that, because of Section 4838 of the Code, the county engineer, notwithstanding the order and franchise granted by the railroad commissioners, has the power to locate this line at such a place on the highway as he sees fit; and in the instant case, he located the pole line at a point one foot from the boundary of the adjoining property. A corporation, like a human being, cannot be expected “to obey two masters,” especially where there seems to be a conflict between their rights and powers. It would appear from Section 4838 that, when new *552 lines are constructed, tlie county engineer has the right to locate the same on the highway. Apparently, therefore, there is a conflict between the power of the county engineer and that of the railroad commissioners. As shown in the record, the railroad commissioners went no further, however, than to indicate on which side of the highway the line was to be constructed; and we believe that both sections of the statute may be given force and effect by saying that the railroad commissioners did locate the line on a certain highway. Subject to this location, the county engineer has the right to designate where it shall be placed on the highway, limited, however, to so placing the line that all of it, including the superstructure, shall be within the boundary line of the highway. Any other construction of these two sections of the statute would put it wholly within the power of the county engineer to make nugatory the orders of the railroad commissioners. We turn now to the facts in the case. The conceded facts are that, if this transmission line, as located by the railroad commissioners, is constructed in accordance with the orders made by the county engineer, not all of the electric transmission line will be within the boundaries of the highway, but a part of it will overhang adjoining property. We think it is the right and duty of the electric company to so construct its line on the highway that its structure and superstructure shall- all be within the boundary of the highway. In the instant case, the boundary of the highway is 33 feet from the center line thereof. Under this situation, and to the end that the whole of the transmission line may be within the boundary of the highway, the center of the poles carrying the superstructure cannot be closer than one half the length of the authorized cross arms to the boundary line of the highwajr. It may be, as suggested by counsel, that these poles and lines on the highways are a nuisance, and produce inconvenience to those in charge of the highways; but that is not a matter for our consideration. The legislature has authorized them to be there, and whatever it authorizes cannot be considered a nuisance. The testimony shows that the county engineer was advised that this line was to be constructed along the highway in controversy. He stated that he designated the line not closer to the center line of the highway than one foot from the right-of- *553 way line. There seems to have been no dispute whatever as to the location of this line on the highway, except a disagreement as to whether it was to be one foot from the fence line or four feet therefrom. This is the real and the only question of contention hi this respect between the parties. Finally, it may be said that one of the duties of the railroad commissioners in considering the application for this franchise was to determine whether or not transmission lines would interfere with the public use of the highway. This was a prerequisite to the allowance of the franchise, and was a determination that, at the time, the condition and use of such highway were such that the erection of this transmission line would in no way obstruct the public use thereof. As we have just suggested, one of the questions decided by the board of railroad commissioners was that the construction of this line would not interfere with the public use of the highway, and this determination was made September 16, 1927. The record as a whole is barren of any evidence whatever to show that there was any change in the condition or any increased demand on the part of the defendant or of the public for the use of this highway between the time the franchise was granted by the railroad commissioners and the time of the trial of this case. The decision of the railroad commissioners, therefore, is controlling on this question. The fact, if it be a fact, that, in the onward march of commerce, conditions may arise in the future under which a larger use of the highways demands the further removal of these poles, or their entire removal from the highways, under existing statutory power or under future legislation under the reserve power of the state, is a question with which we are not now concerned. It will be time enough to cross the bridge when we get to it. To the end that this opinion may not be misunderstood, we will say that the power of the county engineer to fix the location of the line on the highway is limited as above specified; but, aside from this limitation, he has complete control of the location of the line upon the highway. Local conditions arise which require him to use his judgment as to placing a line, because of culverts, cattle crossings, private ways, drainage, and other conditions which exist on the highways which would require a change in the location of the line to meet such existing condi *554 tions. These powers, of course, the comity engineer has, and is authorized to exercise. Local conditions may be such that the lines should be in closer proximity to the highway than above specified. In other words, the question of where the line shall be on a given side of a highway is wholly within the control of the county engineer, except that he must so place it that not only the poles, but all of the wires, guys, superstructure, etc., shall be within the confines of the highway. As a final word, it. will be noted by common observation that, in many instances, both in cities and in the rural districts, large conduits are being buried in the ground for the purpose of carrying wires of telegraph, telephone, or electric lines. If the rule were as claimed by the defendant in this case, then it would be within the power of the local engineer to require that one half or more of such conduits should be constructed on the land adjacent to the highway; and if he had power to order such construction, it would logically follow that, if he allowed one inch of said conduit to be upon the highway and the remainder upon the adjoining land, it would be a full compliance with the law. This would be true even though the conduits were placed, as they are, wholly under ground, so that there could be no possible interference with the use of the surface of the highway by the public for travel or otherwise. As herein expressed, we cannot agree with any such narrow construction of the statute. The district court erred in entering a decree contrary to the construction of the statute placed upon it by this opinion. It should have awarded the relief prayed by the plaintiff. — Re versed. Faville, De Grafe, Kindig, and Geimm, JJ., concur. •Stevens, Evans, MoRLIng, and WagneR, JJ., dissent.