Birmingham Traction Co. v. Sou. Bell Telephone & Telegraph Co.

HARALSON, J. (After stating the case as above.) We do not understand it to be insisted in this case, that the Telephone Company has the exclusive right to the streets and avenues of the city of Birmingham for the [149] purpose of operating its telephone system. No company, under ordinary circumstances, can' assert and maintain a right to the exclusive enjoyment of a public street. Such a monopoly the law does not favor. Counsel for appellee, in their written brief, say that “it does not seek to enjoin appellant from constructing its electric street railway, but simply asks that appellant be restrained from so constructing its lines of poles and wires on and along said streets and avenues, as to interfere with, hurt, harm and injure appellee’s property, service, wires and poles.” Nor, again, do we understand the contention of appellee to be, that a telephone company can maintain a bill for an injunction against the operation of an electric railway, to prevent damages incidentally sustained by the escape of electricity from its rails and wires. It is probably true, that two electric systems of the kind could not be constructed in and operated along the same street — unless it was of uncommon width — without inflicting some incidental injury or damage, the one to the other. In the present state of electrical science, one would not be authorized to be very definite or emphatic in his conclusions touching-such matters. HoAvever that may be, it may be safely stated, as applicable to all conditions, that no one public corporation of the kind should be given a monopoly to the exclusion of others in the use of the streets of a city. Ordinarily, such privileges should be granted, equal Avith and not superior to other like enterprises established for the use of the public. The State licenses such enterprises, not simply that the owner of them may earn profits by establishing and operating them, but that the general public as well may enjoy the benefits of their existence; and when two are authorized by law to use the same street or avenue, it should be with the express or implied condition, that each shall respect the rights and interests of the other, and occasion no unnecessary harm the one to the other. The matter of the regulation of such public corporations are usually committed to the municipalities where they, are established, and in the case before us, it is certainly true, that the regulation of the two corporations pertain to the municipal government of the city of Birmingham. The matter of dispute between them, as disclosed by the bill, demurrers thereto and motion for its dismissal, [150] and the argument of counsel here for appellee, seem to suggest some superior rights in the appellant company over the rights of the ' appellee company' in the use of the streets and avenues of the city of Birmingham, along which the appellee has been for so long a time operating its telephone system, by the authority, it is to be presumed, of said city. There is no suggestion in the bill, however, that this authority to the appellee is exclusive. The bill does allege that the municipal government of Birmingham has an ordinance, set out in the statement of facts, which seems to have been adopted for the purpose of preventing just such contentions and difficulties as those presented in this case, which ordinance, it is alleged, the defendant has been and is now violating, to the injury of complainant. If this be true, as it must be on the trial of this case, on the facts alone alleged in the bill — and, if it is also true, as alleged, that complainant, before filing this bill, went to see the general manager of defendant, and calling his attention to the fact that his company was constructing its poles and wires in a way, as set out in the bill, to prevent complainant from carrying on its business, and that said manager in emphatic language replied that defendant would not correct the abuses complained of, • and notified complainant that if it did not itself correct these troubles, defendant would tear up complainant’s wires and poles — there arises what appears to be an unwarranted usurpation of right and power by defendant, denying to complainant anything like an equal privilege to the enjoyment of said streets with the defendant. The complainant had for about ten years, been operating its telephone system, under full authority to do so, as is alleged, and was the first coiner to occupy the streets. While (whether) such prior occupancy, we deem is unnecessary to decide, conferred superior privileges, it may certainly be considered, in denial of defendant’s alleged usurpation of superior rights in said streets and avenues. For the purposes of the case, if conceded that defendant, in operating its electric railroad, had a right to use the streets of said city, equal, in all respects, to the right of complainant to the enjoyment of the same for the purpose of its telephone system, which is as much as defendant may claim, the concession would put the151 two companies towards each other in the legal attitude of using, each, in a sense, its own property, calling for the application of the old and just and universally accepted rule, that every person is hound to the exercise of reasonable care in the use of his own property, and for any default in that particular, he is liable. to the person injured in an action of damages resulting from his own negligence; or, to state the'same rule somewhat differently, it is nowhere denied, that “if one do a law-. ful act upon his own premises, he can not be held responsible for injurious consequences that may result from it, unless it was so done as to constitute actionable negligence;” and whatever annoyance or injury may result to one person from the rightful and lawful use of his property — which implies no want of care for the rights and interests of others — it is damnum absque injuria. In conformity with these principles, it has been stated by high authority, in a case similar to the one in hand, to be “well settled so far as persons operating under legislative grants are concerned, that something more than incidental damage to another must be proved —-something in fact in the nature of an abuse of the franchise — to entitle the party injured to an ' injunction. — Cumberland T. & T. Co. v. U. S. Elec. Co., (Ct. Ct. M. D. Tenn., opinion by Justice Brown), 42 Fed. Rep. 273. See, also, 25 Amer. & Eng. Encyc. of Law, 764-767. The contention of appellant, that the court beloAV erred in overruling the motion to dissolve the injunction, proceeds upon the assumption, that there is no equity in the bill, as appears on its own allegations. It may be admitted, that a mere allegation of irreparable injury Avithout a statement of facts.to show such injury, is a mere conclusion, and can not be made the ground for granting an injunction. The facts in this case, to shoAV such alleged injury are fully set out. Whether they are fully enough aArerred or not, we Avill not now discuss. That they sIioav injury to complainant of a serious character is manifest. The right in complainant to use the street, cannot, under the allegations, be denied. The conduct of defendant, as shoAvn, is an unwarranted usurpation, amounting to a trespass on complainant’s rights, which is recurrent, continuous and tending to a multiplicity of suits. This, a court of [152] equity will interfere by injunction to prevent. — Bowling v. Crook, 104 Ala. 130. Moreover, the authority of an equity court to grant and maintain this injunction, may be rested on that other ground of chancery jurisdiction, that such courts will interfere to control such corporations as these, to keep them within the line of their authority and subject to law, in order to prevent such usurpations and damages as are here complained of. — E. & W. R. Co. v. E. T., V. & Ca. R. Co., 75 Ala. 275; H. A. & B. R. R. Co. v. Matthews, 99 Ala. 24; Railroad Co. v. Witherow, 82 Ala. 190; M. & M. R. Co. v. Ala. M. R. Co., 23 So. Rep. 57. The damages to complainant in this case as shown, are not incidental, growing out of a careful and lawful use of the streets and avenues by defendant, and such as are damnum absque injuria; but they arise from the misconduct of defendant in the nature of an abuse of its franchise. These damages the1 defendant might, as appears, avoid, but which it without reason claims the complainant was under obligation to remove. If the facts of this case as averred are true, as the demurrer and motion to dismiss admit, it is difficult to see why the bill does not contain equity. There was no error in refusing to dissolve the injunction. Affirmed.