Western Union Telegraph Co. v. Electric Light & Power Co.

Vann, J. This is a controversy between two underground occupants of a public street in the city of Syracuse, each having a franchise granted by the common council. The plaintiff’s franchise, which is the earlier in date, permitted it to construct a subway or conduit under certain streets and to place wires therein “ necessary in the operation and conduct ” of its telegraph business, according to plans and specifications to be approved by the commissioner of public works or the common council. Among the many conditions and limitations of the grant was the provision that no “ exclusive franchise to use the streets and public places of the city, or any of them, *328 for a subway, or for any other purpose ” should be deemed to be conferred upon the plaintiff, and that “ all rights and privileges not herein specifically given are expressly reserved by the common council.” Under this permit the plaintiff constructed a subway, which consists of a structure sixteen inches high and nine inches wide laid a few feet below the surface of the streets. It contains six wooden ducts, one of which, as required by the grant, is for the exclusive use of the city and is controlled by it accordingly. Subsequently, the common council, upon similar conditions, gave the defendant a franchise to construct a subway to conduct and distribute “ electricity for light, heat or power for public or private use.” The defendant built its line in some of the streets already occupied by the subway of the plaintiff. Its structure, twenty-six inches wide by seventeen inches high, was located, as the franchise provided, by the commissioner of public works and in some instances was placed above and parallel to the line of the plaintiff and at a distance of but one or two. feet therefrom. On the south side the two structures are bounded by the same vertical line, but on the north side the defendant’s subway projects about seventeen inches over that of the plaintiff. In one locality for a distance of about 420 feet, if the earth beneath the defendant’s subway were removed it could not sustain itself, for it is not self-supporting except in sections four feet long, and artificial support would be necessary in order to repair the plaintiff’s line or remove a duct therefrom. At this point the street contains many substructures, including a sewer,” water and gas mains, other subways and the like, while on the surface there is a double-track street railroad. On the side of the street selected the unoccujfied space where the defendant’s subway could have been located without interfering with any substructure is about three feet wide and is just south of and between plaintiff’s subway and a water - main. On the other side of the street there was also unoccupied space which was certain, however, to be needed in the future. While the defendant was constructing its work the plaintiff *329 protested against the location selected and some delay resulted, but finally the defendant placed its subway, pursuant to its franchise, in the exact situation and position directed by the commissioner of public works. After the defendant had completed its line, the plaintiff, with no allegation of insolvency in its complaint, or that a multiplicity of suits, would result, brought this action to restrain the defendant from using or maintaining its subway as located in the street in question and to compel it to remove its line therefrom. The theory of the complaint is that the location of the defendant’s subway interferes with access to the subway of the plaintiff for the purpose of making repairs and that it will “ necessarily cause great inconvenience and expense.” The trial court did not grant an injunction, but required the defendant and the city of Syracuse, which was joined as a defendant but for some reason did not defend, within thirty days after entry of judgment and notice thereof, to execute a bond in the penalty of $5,000 with two sureties to “ indemnify the plaintiff * * * against any loss, damage or expense which it or its successors may sustain by reason of the location ” of the defendant’s line and restraining both defendants from using the subway or placing any wires therein during said period of thirty days. The Appellate Division unanimously affirmed the judgment and the Syracuse Electric Light and Power Company appealed to this court. The question presented for review is whether, upon the facts alleged in the complaint and those found by the trial judge, the court had power to grant the relief provided by its judgment. The object of the action was to restrain an alleged trespass, ' which is not permitted except under peculiar circumstances not shown to exist in this case. The result of 'the action was an adjudication, in effect, that a resort to equity was unnecessary, because the requirement of a bond to indemnify against damages shows that there was an adequate remedy at law through the recovery of damages, as compensation. Thus the court, sitting as a court of equity, awarded nothing but *330 wliat could be had in an action at law, except to provide security that the damages when admeasured at law would be paid. An action at law would be required to recover any damages under the bond and the same damages could be recovered to the same amount in an action at law without a bond. The court adjudged that the structure of the defendant was unlawful and that it might result in damages to the plaintiff in the future, but the only relief awarded was to require the defendant to secure the payment of such damages if they should accrue. It did not grant an injunction provided the defendants should not execute a bond, but issued an absolute command requiring the two corporations, one a city of the second class, to furnish security for all time to come that if damages should result from the defendant’s illegal action they would be paid. This adjudication necessarily involved, as a part thereof, that the recovery of damages was an adequate remedy and, hence, that an action in equity was unnecessary. While I think the judgment should be reversed upon the ground already stated, there are other considerations which should not be lost sight of, for they involve the welfare of the public in all municipal corporations. Space beneath the surface of streets in our large cities is becoming more valuable every year for the purpose of conducting water, heat and light to the dwellings of the inhabitants, as well as for the ’ construction of sewers, underground railroads, subway lines, pneumatic tubes and other agencies of great public utility. The existence of surface railroads frequently renders access to the various structures beneath the streets more or less difficult and makes it undesirable that subways “or other structures should be located under the tracks. It is in view of such circumstances and possibilities that a franchise granted by a city permitting a corporation to place some structure beneath the surface of the streets, is to be considered and construed. When, therefore, the common council in granting a franchise to the plaintiff, provided that nothing therein contained should be deemed to give it “any exclusive franchise to use the streets for a sub *331 way or for any other purpose ” and reserving all rights and privileges not specifically given, it did not empower the plaintiff to dictate what other structures should be located beneath the street or where they should be placed. All that the plaintiff can lawfully demand is that its structure shall not be unreasonably interfered with. This is involved in the terms of its grant, when construed in the light of all the facts. It cannot keep out other structures, even if their construction involves expense and inconvenience to itself. It cannot say there shall be no subway above, beneath or on either side of its own, for that right the city reserved and doubtless it would have been reserved by implication, if it had not been reserved expressly. The franchise “ is to be construed in the interest of the public, and hence in favor of the grantor and not, as in ordinary cases, in favor of the grantee.” (Trustees of Southampton v. Jessup, 162 N. Y. 122, 127 ; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 178.) The plaintiff took nothing by its grant but what was expressly given, or necessarily involved in what was expressly given. There is nothing in its franchise to prevent the city from laying a subway on any side of the plaintiff’s subway and.immediately adjoining it, or from authorizing some other corporation to do it. If the city, which has control of the streets both above and below the surface, sees fit to economize space with reference to the wants of the future, it has a right to do so and for this purpose to place, or authorize another coloration to place, conduit lines so near that of the plaintiff as to make access somewhat inconvenient and expensive. . The city cannot destroy the plaintiff’s line nor prevent reasonable access to it, but it is not obliged to consult the mere convenience of the plaintiff, nor study to save it from expense to the detriment of the public. In other words, the plaintiff may make a reasonable, but not an unreasonable, use of the right granted. While the city could not grant to another the right to use the same space occupied by the plaintiff’s line, it could authorize the use of any other space, provided access to the line was left open, even if it was less convenient and more expensive. *332 The defendant’s subway does not interfere with the operation of the plaintiff’s line in any way, as there is the same convenience of access for that purpose as before. When, however, repairs or changes become necessary, it cannot reach its structure by digging down directly thereto, but must dig down by the side and make a deeper excavation. If the repairs should require the removal of the earth between its line and that of the plaintiff for a distance exceeding four feet, it would be necessary for it to notify the defendant to support its line while the repairs were in progress, or else to support it at its own expense. This is the extent of the interference with the plaintiff’s subway by the location of the defendant’s line. It simply involves a slight increase of expense in order to .reach the plaintiff’s structure for the purpose of making repairs. The charter of the city of Syracuse, in force when the franchises in question were granted, provided that the common council should have power “ to require that telegraph, telephone or electric light wires or cables, or other appliances for conducting electricity, except trolley and feed wires, poles and fixtures used in operating street railroads, and- the poles thereof heretofore erected in any street, alley or public ground * * * be removed from overhead in such street, alley or public ground, or any part thereof, within a reasonable time, not less than three months after the enactment of such ordinance * * * JSTo company, corporation or individual shall place its wires and electrical conductors in conduits under tire surface of the streets, alleys or public grounds in such manner as to unnecessarily interfere with the use of such street, alley, or public grounds, or local improvements of any character or with the sewers or water or gas mains or branches thereof, nor without first obtaining the consent of the common council, subject to such regulations and restrictions as the common council may by ordinance make, or impose, in resjject thereto, for the benefit of the public, the city or its citizens, and under the direction and supervision of the commissioner of public works * * *. And any company, corporation or individual so placing its wires under *333 ground in any street, alley or public ground of said city, shall, upon notice from the city, or any of its departments that a local improvement or sewer or water main, or branch thereof, is to be constructed in such manner as will necessitate the moving or altering of the conduit or conduits, by said individual, company or corporation, move or alter the same at its own expense so as to permit the construction of the improvement where ordered, and should any person, company or corporation omit to comply with such notice, the conduit or conduits may be altered or moved by the city, and the cost and expense thereof recovered from such individual, company or corporation; to regulate the erection of telegraph, electric light and telephone poles, wires, cables and other electrical conductors” and require them to “be placed underground, subject to such restrictions and regulations as it may make by general ordinance, but nothing in this section contained shall affect any grant or consent heretofore made or given pursuant to general laws, as to any matter provided for in and by such grant or consent.” (L. 1893, ch. 531, § 2, amending § 22 of the Revised Charter.) This statute is part of the franchise granted to either party to this action and is to be construed in connection therewith. It shows that the city has control of the subject and that the plaintiff accepted its franchise subject to the right of the city to grant similar franchises to other corporations and subject to the right of the commissioner of public works to locate the position of any new structure beneath the surface of the street. The question is not before us whether the commissioner selected the best possible location for the defendant’s line, but simply whether he exercised his power in a reasonable way. The law made it his duty to determine the location, not the duty of the court. The statute gave him discretionary power in the premises which is not subject to judicial control “ except in extraordinary and exceptional instances of gross abuse.” (Dillon Municipal Corporations, § 832; High on Injunctions, §§ 1240, 1210.) I think that when the franchise of the plaintiff is construed *334 in connection with the city charter in force when it was granted, and in the light of facts relating to the use of the street then existing or in reasonable contemplation by the parties, the commissioner of public works had the right to locate the plaintiff’s line where it now is and that the courts have no power to adjudge that location unlawful, under the circumstances of this case. I vote for reversal and a new trial, costs to abide event.