United States Illuminating Co. v. Grant

Van Brunt, P. J. The circumstances relating to the organization of the United States Illuminating Company and the Brush Electric Illuminating Company are so similar that it is not necessary, in the statement of facts, to refer distinctly to those two plaintiffs. The Mount Morris Electric Light Company stands in a different position in some respects, which will be hereafter noticed. The two plaintiffs first above mentioned seem to hawe been organized, pursuant to the laws of this state, for the purpose of generating and distributing through New York city electric currents, for light and power. They were authorized to erect and maintain wires, poles, and other fixtures incidental to their business, over and upon the streets of the city, upon obtaining the consent of the municipal authorities. This consent was given by resolution of the common council; and pursuant to this authority a large amount of money has been invested in the business for the prosecution of which these companies were organized, and poles have been erected and wires strung by virtue of their charters, and with the permission and under the protection of the municipal authorities. In 1884 the first act of the legislature was passed, looking to a suppression of the evil, which had been recognized, of allowing telephonic and electrical companies to occupy those parts — 789 — of the streets which are above ground for their poles and wires. By this act it was provided that all telegraphic, telephonic, and electric-light wires and cables used in any incorporated city of this state having a population of 500,-000 or over should thereafter be placed under the surface of the streets and .avenues of said cities, and that this should take place on or before the 1st day of November, 1885. And it was further provided that in case the owners of the property should fail to comply with the provisions of the act the local governments of the said cities were directed to remove without delay all telegraphic, electric-light, and other wires, cables, and poles, wherever found above ground, within the corporate limits of said cities. Compliance with this act having been recognized as an impossibility, in 1885 another act was passed, entitled “An act providing for placing electrical conductors under ground in cities of this state, and for commissioners of electrical subways.” Laws 1885, c. 499. By this act, within 20 days after the passage thereof, in ■cities having a population exceeding 1,000,000, according to the last census, the mayor, comptroller, and commissioner of public works of such cities were authorized and directed to appoint three disinterested persons, residents of the respective cities for which they shall be appointed, to be a board of commissioners of electrical subways. This board was charged with the responsibility ■of enforcing the provisions of the act hereinbefore mentioned, and the act of 1884 was amended so as to conform in all respects to the provisions of the act ■of 1885. By the act of 1885, it was made the duty of the subway commissioners to cause to be removed from the surface and put, maintained, and operated under ground, wherever practical, all electric wires or cables used in the business of any electrical company. Provision was also made for such companies constructing conduits under ground, after approval of their plans by the board of subways. It was further provided that said subway board should carefully investigate any and all methods proposed by any such company. It further provided that if no suitable plan was proposed or in use within 60 days after the passage of the act it should be the duty of the board to cause to be devised and made ready for use such a general plan as would meet the requirements of said acts, and that the board should have full authority to compel all companies operating electric wires to use the subways so prepared. In the suburbs, or along the streets, avenues, or other highways, in sparsely inhabited or unoccupied portions of any such city, the public interests not requiring the electrical conductors to be placed under ground, and wherever, in any other locality in any such city, it was deemed by said board to be for any cause impracticable to construct and successfully operate under ground the electrical conductors required by any such company, it should be the duty of said board to examine and grant the application of any such company for permission to deviate from an under-ground system; but the board should not grant any such permission, unless satisfied, upon such investigation, that such a permission should, for one or the other reasons thereinbefore ■stated, be granted, and that it would not interfere with the successful working of under-ground conductors elsewhere in said city. It was provided that such permit should be held and construed to authorize the construction and maintenance of the lines of conductors therein provided for as and where prescribed by the board. It was also made the duty of the board, in granting such permits, to bear in .mind the purpose and policy of the act, which was to convert the overhead systems in use in said cities to under-ground systems as soon as possible, without impairing the efficiency of their service. The act further provided that the work of constructing every line of conductors authorized by any such permit should be subject to the rules and regulations, not inconsistent therewith, prescribed, or to be prescribed, by the local authorities having control of the streets, avenues, or other highways in such city; and that every such permit should specify the location of the structures to be- erected and used for sustaining the electrical conductors, and should — 790 — give the general dimensions thereof. The act further provided, by section 5, that whenever said commissioners, in carrying out the provisions of the act, should permit any aerial electrical wires or cables to be erected, it should be the duty of the board to designate in such permit the route and location thereof, and to prescribe and regulate the height at-which such wires or cables should be placed, and' that all such wires and cables should be so erected and maintained as not to incommode the other public uses of such streets, avenues, or highways. In 1886 an act was passed, amending the act of 1885 in particulars which it is not necessary to mention here. In 1887, another act was passed, entitled “An act in relation to electrical conductors in the city of Hew York,” (Laws 1887, c. 716,) by which, after its passage, the board of commissioners of electrical subways in and for the city of Hew York heretofore appointed, together with the mayor of said city for the time being, were constituted a board of electrical control in and for the city of Hew York, and upon this board were conferred all the powers and duties imposed by the act of 1885 upon the commissioners appointed thereunder, and all the powers and duties theretofore by any law conferred or imposed upon the local authorities of said cities, or any of them, in respect to or affecting the placing, erecting, construction, suspension, maintenance, use, regulation, or control of any electrical conductors or conduits or subways for electrical conductors in said cities; and it was provided that such powers should thereafter be exclusively exercised or performed by said board of electrical control. By the third section, it was provided that whenever, in' the opinion of the board, in any street or locality of any city, a sufficient construction of conduits or subways under ground should be made ready, under the provisions of the act, it should notify the owners of the electrical conductors above ground in such street or locality to make such electrical connections in said street, or through other streets, localities, or parts of the city, with such under-ground conduits or subways, and to remove poles, wires, etc., above ground, and their supporting fixtures or other devices, within 90 days after notice to such effect should be given. This provision was made a police regulation in and for the city of Hew York; and, in case it was not complied with, it was made the duty of the commissioner of public works to cause the same to be removed forthwith by the bureau of incumbrances, upon the written order of the mayor of said city to that effect. The fourth section is as follows: “See. 4. It shall be unlawful, after the passage of this act, for any corporation or individual to take up the pavements of the streets of said city, or to excavate in any of said streets, for the purpose of laying under ground any electrical conductors, unless a permit, in writing, therefor shall have been first obtained from the said board, or its predecessors; and, except with such permission, no electrical conductors, poles, or other figures or devices therefor, nor any wires, shall hereafter be continued, constructed, erected, or maintained or strung above ground in any part of said city. The said board of electrical control may establish, and from time to time may alter, add to, or amend all proper and necessary rules, regulations, and provisions for the manner of use and management of the electrical conductors, and of the conduits or subways therefor, constructed or contemplated under the provisions of this act, or of any act herein mentioned.” Pursuant to the authority thus conferred, certain subways in this city have been constructed; but sufficient for the operating of the under-ground wires of the two plaintiff companies above mentioned have not been constructed or provided for their use, and they have not been permitted to construct the same upon plans of their own. Under the authority conferred by the acts above mentioned, the plaintiff, the Mount Morris Electric Light Company, has constructed its plant, pursuant to the rules and regulations, and under the supervision, of the board of electrical control. Various accidents having occurred, the attention of the board and the city authorities was called to the — 791 — condition of the electric wires which were being used by those companies; and, it being found that many of these wires were dangerous, because of their want of proper insulation, the board of electrical control, on the 9th of October, 1889, passed the following resolution: “Resolved, that notice be given to all companies operating and furnishing electric lights on overhead wires in the city of New York to discontinue the use of such overhead wires until such time as said wires shall be certified by the expert of this board to be in proper and safe condition.” The companies plaintiff were a day or two thereafter notified to shut off the electric currents from their wires, and on the 12th of October the mayor issued a direction to the commissioner of public works in the following language: “Sir: You are hereby directed to remove all the electric-light wires in the city of New York which are at this date improperly insulated, and which are now in position, in violation of the rules and regulations of the board of electrical control. The wires to be removed under this order to be designated by the expert of the board. ” Subsequent to the receipt of this order the commissioner of public works proceeded to take down wires claimed to be imperfectly insulated, and therefore dangerous to human life. It is claimed upon the part of the plaintiffs that the said commissioner, in the carrying out of this work, not only removed wires where there was a break in the insulation, but also a number of blocks of wires all of which were of good quality, proper insulation, and in perfect condition; and that he threatened on the following morning to take down the remaining connecting wires, although in a state of perfect insulation. The plaintiffs, claiming that the condition of their wires was due solely to the arbitrary and unjust refusal of the board of electrical control to permit the plaintiffs to repair the same, without which permit such repairs could not be made, and that their rights of property were in jeopardy, and that the public authorities had no power to interfere with the conduct of their business in the manner in which it was proposed to do, obtained and served the temporary injunction granted herein. Upon argument, this injunction was made permanent, to the extent that the board of electrical control were restrained and enjoined “from removing, or causing to be removed, any of the poles or overhead wires or fixtures of the plaintiffs in this city, except in the parts of said city where suitable under-ground subways or conduits for the suitable reception of the overhead wires of plaintiffs have been provided and made ready for the occupancy of plaintiffs, and notice thereof given to plaintiffs as required by statute; and, except where such under-ground subways or conduits have been provided as aforesaid, from preventing repairs of any of the poles or overhead wires and fixtures of the plaintiffs, or the replacing of such poles or wires or fixtures as may be defective by proper poles or wires; and from ordering plaintiff to discontinue the use of its overhead wires, or any of them, except wires defectively insulated, and then only until such wires have been properly insulated, or replaced by wires properly insulated. ” And the defendant the commissioner of public works was enjoined and restrained from removing, or causing to be removed, any of these poles, wires, or fixtures, except where suitable subways had been provided, and notice thereof given, without first giving the plaintiffs written notice, specifying in detail the particular wires, or parts of wires, defectively insulated, or for other cause needing repairs or replacement, or the particular poles or fixtures needing repairs or replacement, and giving to plaintiffs reasonable time to repair and replace the same; and only upon the default of the plaintiffs to make such repairs or replacement after such reasonable time had elapsed after the giving of such notice. From such order this appeal is taken. It seems to us that but two questions are presented by this appeal, and they are—First, even if the board of electrical control in those cases where subways have not been provided, have refused permission to these plaintiffs to make such repairs as were necessary to keep their plant in a perfect and safe — 792 — condition, will such refusal excuse the plaintiffs for their failure so to do? and, secondly, has the commissioner of public works the power to abate a public nuisance existing in the streets of the city of New York, dangerous to the lives of its citizens, without first going to the creator of the nuisance, and informing him of the discovery of its existence by the authorities, and requesting him to abate the same, and thereafter waiting, before proceeding to protect the lives of the citizens, for some indefinite length of time, called a “reasonable time,” in order to see whether the creator of the nuisance will abate the same or not? That the latter is a proposition presented by this appeal seems to have been conceded by the learned counsel for the plaintiffs upon the argument, and also by the learned judge in the court below. It was admitted upon the argument that in the conduct of the business in which these plaintiffs are engaged the wires employed for the conducting of the currents used by them for the purpose of lighting, and the furnishing of power, unless perfectly insulated, are dangerous to human life; and, without this admission, occurrences have taken place which demonstrate the proposition. The plaintiffs, therefore, are conducting a business by means of an apparatus and a force which, unless properly controlled, subjects every passer-by in the streets of New York to the danger of death. They are therefore bound, in the prosecution of that business, to use the highest degree of diligence; and, if it is impossible for them to conduct their business without subjecting the passers-by upon the streets of the city to danger, although without negligence on their part, then it is doubtful whether the legislature, even, could, without closing the street as a public highway, and making provisions for compensation to all parties damaged thereby, confer authority for the conduct of such a business upon the public streets of this city, because it would be giving up the streets to a purpose for which they had never been dedicated. , . The proposition, then, which is presented, is, in view of the rule of law requiring the plaintiffs, because of the dangerous character of the business which they are conducting; to use the highest degree of diligence, when the plaintiffs have failed to comply with this obligation, and when human life is threatened because of this failure, have not the public authorities—or, for that matter, any citizen—the right to at once remove such danger, as a common nuisance? We think there can be but one answer to this proposition; and that under such circumstances the law allows this summary method of doing justice, because injuries of this kind require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of j udicial procedure. In other words, human life is more sacred than the forms of legal procedure. When it is apparent, as in the case at bar, that the condition of the wires of the plaintiff is such tiiat they are dangerous to human life, and that any passer-by, without negligence on his part, is liable to be struck dead in the street, can it be said for a moment that the public authorities have no power to abate this nuisance, and protect the lives of its citizens ? Indeed, it is one of their highest duties; and, if they allowed such a condition of affairs to continue, they might make the city itself liable for the damages sustained by reason of their negligence in not removing the common nuisance. But it is said upon the part of the plaintiffs that “our large investment of capital is thus left to the mercy of the public authorities, and we are at least entitled to some notice of the defects complained of, that we may remove the same.” This proposition involves a claim upon the part of these corporations that the public authorities shall perform a duty which the law devolves upon themselves, namely, the proper inspection of their own apparatus, which is liable to become dangerous at any time, and the immediate remedying of the difficulty. It is not a part of the duty of the public authorities to inspect the apparatus of private corporations, and warn them when such apparatus becomes dangerous to human life. There is one fact which seems to be established beyond question upon the — 793 — papers before this court, and that is that at the time of the commencement of these actions the wires of these plaintiffs had become excessively dangerous, by reason of defective insulation. Attention was called to this condition of affairs by the happening of accidents by which human life was sacrificed, and the great strife seems to have been, between the electrical companies and the board of electrical control, as to upon whom the blame for this shameful condition of affairs was to be imposed. The companies claim that the board refused arbitrarily to allow repairs to be made, which were requested by them, and that the rules and regulations of the board regulating these repairs were unreasonable, and that they were in consequence unable to keep their wires in that condition which their plain duty required should be done. But, even if this state of affairs existed, it was no excuse to the plaintiffs. They had ample remedies at their hand for the purpose of compelling the board of electrical control to give them permits for the making of repairs, if such permits were unjustly refused. The courts were open to them; and it is a familiar principle that where a permit upon the part of any of the city’s officers is improperly refused, a mandamus may issue to compel the performance of that public duty. But these plaintiffs, when their wires got into such a condition, concededly, as made them public nuisances, endangering human life, made not the slightest effort to compel the board of electrical control, if they unjustly refused, to grant them permits to repair; and it is a very significant circumstance, when we take into consideration the dispute that arose between the board of electrical control and the plaintiffs. If these electrical companies had been actuated by the slightest desire to put their apparatus in a condition such as would not endanger human life, they could easily have found a way to remove the obstruction which they claim was placed in their path by the board of electrical control. It would seem that they were only too willing to attempt to shelter themselves behind the assumed unreasonableness of some of the regulations of the board, and allow their apparatus to get into such a condition that it was dangerous to human life, and become a public nuisance. In the determination of the question as to whether the commissioner of public works should have been enjoined in the removal of those wires which were not properly insulated, it is not necessary for us to consider or discuss this dispute. The mere fact that the board of electrical control refused permits to which the plaintiffs were entitled, forms no excuse for their allowing these wires to get in this condition, and remain so for the periods of time established by the papers before us. There is no question but that if the operation of their system bad depended upon the procuring of these permits to which they were entitled the plaintiffs would have found ready means to call the board of electrical control to reason. But, by sheltering themselves under this, as they now claim, unauthorized action of the board, they undoubtedly thought themselves excused from the expenditures of money necessary to render their apparatus safe for operation. As has already been said, this formed no excuse for a longer time than would have been necessary to make an application to the courts to enforce their rights against the board of electrical control. It should be observed that the complaint alleges that whatever disputes had arisen between the board of electrical control and the companies in respect to the making of repairs had been settled prior to the commencement of this action, and that the board had construed its rules so as to allow the plaintiffs to take down old wires where this was deemed necessary, and replace them by new wires, protected by new insulation; and it further appears by the other papers that this occurred in August, 1889. The complaint further alleges that it was still uncertain whether said board would allow the new wires which are erected in place of the old ones taken down to be of larger size and greater conductivity than the wires which they replace. This, being new construction, was clearly a matter within the discretion of — 794 — the board; and hence every question as to permits simply to repair had been resolved long before the commencement of this action. It further appears from the papers in this case that at the time of the commencement of these suits the wires of these companies were in a terrible condition, in respect to imperfect insulation, and that they were a menace upon all sides to the safety of the passer-by upon the public streets. The commissioner of public works, under these circumstances, in view of his duty to remove obstructions from the streets, whether dangerous to the citizens or otherwise, had the duty devolved upon him to abate the nuisance at the earliest possible moment. It is true that in taking such action he undoubtedly did so at his peril; and, in an action brought against him for the violation of the property rights of any one of these companies, he would be bound to show such a condition of affairs as rendered the existence of the wires so removed a public nuisance. It is claimed upon the part of the plaintiffs that the commissioner of public works asserted the right to remove a whole line of wire because of a single defect. This, however, does not seem to be clearly established. He undoubtedly had no right to remove more than was necessary to abate the nuisance. But this right existed in the commissioner of public works, in common with any other citizen who desired to use the streets of the city. It is undoubtedly true that no power other than that connected with his office was conferred upon the commissioner by the resolution of the board of electrical control, or the direction upon the part of the mayor. The contingency had not arisen which authorized the board of electrical control, as a body, to put the commissioner of public works in motion; nor was the mayor authorized to confer any authority upon the comissioner in respect to this matter which he did not enjoy by virtue of his office. Therefore, in the consideration of this question it has not been deemed necessary to discuss the action of the board of electrical control or of the mayor. It has also been assumed that these plaintiffs have a right to continue and maintain overhead wires until the subways should be ready, provided such wires are maintained in such a manner as not to be dangerous to human life; and that they have a right, when such wires become out of repair, to repair the same, subject to the reasonable regulations of the board of electrical control; and that it is the duty of the said board, if necessary, to give the plaintiff permission to do so. The learned judge in the court below seems to have conceded these propositions, and said: “The plaintiff owes a duty to the public to keep its wires safe; and, if the board would not take the necessary action to enable it to remove dangerous wires and put up safe ones, it should have applied to the courts for relief. Under these circumstances, I think it was not only a proper and necessary regulation for the board to require the plaintiff to discontinue the use of such overhead wires as were not properly insulated, but that it was the plain duty of the board to make such regulation. Whoever may be responsible for the failure to supply subways, and whether the plaintiff is wholly or only partially responsible for the fact that its unsafe wires were not repaired, when it became apparent that human life was endangered by reason of the imperfect insulation of some of its wires it was the right and duty of the board to direct the immediate discontinuance of the use of such wires. Nor do I think it was necessary to the validity of such action that the plaintiff should have had notice, and an opportunity to be heard and to remedy the defects, before the resolution was adopted. A wire carrying a heavy current of electricity, and not properly insulated, is dangerous to life, and is a public nuisance; and I think the board had the right to direct the immediate discontinuance of such wires, without notice to the plaintiff. I am inclined to think, however, that the resolution which was adopted went too far, in providing that such discontinuance should continue until the expert of the board should certify that such wires were in a proper and safe condition. The plaintiff has no control over — 795 — such expert; and it is possible that, for reasons satisfactory to himself, he might never give such a certificate, even if the wires were made perfectly safe.” It would thus appear that his judgment was founded upon the assumption that the commissioner of public works derived his authority to act from the board of electrical control and the mayor; and that the action of the commissioner should not be controlled by the opinion of the expert of the board of electrical control; and that the board had no power to compel the discontinuance of the wires until the expert should certify that such wires were in a safe and proper condition; and that the decision of the expert as to the want of safety of the wires would not necessarily justify the action of the commissioner. In these latter propositions, we think the learned judge was-clearly right. But the commissioner of public works had a right to act, both as a private citizen and by virtue of his office, and to remove these obstructions, which had become dangerous, without notice to the plaintiffs; and therefore the injunction which was granted was entirely too broad, in restraining all action upon the part of the commissioner of public works until the companies should have an opportunity to remedy the defects pointed out by him. Considerable has been said upon the argument, and is also contained in the-brief of the counsel of one of the parties plaintiff, that the power to remove nuisances which had become dangerous to life is vested in another department of the city government. It may be true that the board of health, under the peculiar phraseology of the act conferring powers upon them, would have a right to remove these wires, because dangerous to human life. But their power was not exclusive. The department of public works had a right also, and it was its duty, to keep the streets of the city of New York in a passable condition, and to remove all obstructions which interfered with their use, and therefore'had ample authority to abate this nuisance. If this was not so, will a court of equity intervene, by injunction, to restrain the abatement of a nuisance by the public authorities simply because the proper department is not acting? We think not. The nuisance existing, the court will not limit its abatement to any particular officer of the municipality, unless the exclusive power is plainly conferred upon one department. Even then, the right of an officer of the municipality to act as a private citiz.en, in a perfectly clear case, would not be affected. The counsel for the respondents, while apparently conceding the right of the commissioner of public works to remove an imperfectly insulated wire* urges that the right of removal must in the first place depend upon a determination by the commissioner of the condition of the fixture, and this he has no right arbitrarily to determine without notice, and without affording the plaintiffs an opportunity to be heard; and, if the pole or wire is defective or unsafe, it should not be removed, or the nuisance abated, without granting to the plaintiff an opportunity to remedy the alleged defect. That the commissioner should not act arbitrarily, and without a determination as to the condition and existence of the nuisance, is undoubtedly correct; but where a party erects and maintains knowingly a public nuisance in the streets of New York, necessarily dangerous to human life, we know of no rule of law which requires the public authorities, or the public, to abandon the streets until the party maintaining the nuisance shall have an opportunity to be heard as to its existence, and, after such hearing, an opportunity to remove the same. In his proposition the learned counsel seems to us to overlook the important fact that it is because of the gross negligence of the plaintiff that these wires were allowed to become a public nuisance, as they are conceded to have been at the time of the commencement of this action. The plaintiffs have been guilty of a willful violation of a manifest duty in allowing these wires to become dangerous. They are without excuse; and when they claim that the destruction of these instruments of death, maintained by them in violation of every duty and obligation which they owe to the public, is an invasion of their rights of — 796 — property, such claim seems to proceed upon the assumption that nothing has •a right to exist except themselves. It is idle to say that a party knowingly maintaining a nuisance which may at any time deal death to innocent pass-ers-by can for an instant be entitled to the protection of the law in its maintenance. If these plaintiffs had been without fault, a different question might have been presented. ,.But it is evident that they were guilty of the highest degree of negligence. The commissioner had authority, both as a private •citizen and as a public official charged by the duties of his office with the removal of obstructions from the streets of the city, to abate the nuisance complained of. Some of the affidavits contained in the record appear to claim that the commissioner of public works, although not acting wantonly in his attempts to •abate the existing nuisance, yet either had removed or threatened to remove, before the hearing of the motion in the court helow, certain wires which were not in a defective condition. We have not deemed it necessary to advert to •those claims, because the complaint, as filed, contains no averments under which proof of such facts would be admissible; and, as the relief granted must depend upon the allegations of the complaint, no such question is presented for consideration. It follows, therefore, that the order appealed from •should be reversed, with $10 costs and disbursements.