Rough River Telephone Co. v. Cumberland Telephone & Telegraph Co.

Opinion of the court by JUDGE BARKER Reversing. The appellee, a corporation, was operating a telephone line ov.er and along one of the public streets of Hartford, Ky., a city of the' sixth class. The appellant, also a corporation, in placing. poles along the same street for the purpose of erecting a telephone line, so stationed one of the poles, in the language of the petition, “that it displaces plaintiff’s wires, and jams and bunches them together, so that plaintiff’s exchange and system of telephone are greatly disarranged, and their service greatly hindered, and rendered worthless to many of plaintiff’s subscribers, and will result in the loss of many of plaintiff’s patrons if the wrongs complained of are allowed to be continued.” The issues being made up, the court, by final judgment, awarded a perpetual injunction in accordance with the prayer of the petition. From this judgment appellant has appealed. In the pleadings the right of appellee (plaintiff) to operate its line over the public highway of Hartford was placed in issue, and the view we have taken of this question renders unnecessary the consideration of any other question in the case. Section 103 of the Constitution prohibits, among other [474] things, tlie erection by á telephone company of “its poles, posts, or other apparatus, along, over, under, or across the streets, alleys, or public grounds of a city or town without the consent of the proper legislative bodies or boards of such cities or towns being first obtained. . . . Section 3699 of the Kentucky Statutes of 1903 (charter of cities of the sixth class) provides as follows: “No order or resolution granting any franchise shall be passed by the board of trustees within five days after its introduction, nor at any other than a regular meeting. . . .” Whatever rights appellee had in the streets of Hartford were obtained under the following resolution of its board of trustees, as appears from Exhibit A, filed by it.: “Special Meeting of the Board of Trustees of the Town of Hartford, Ky., Sept. 1st, 1898. The Cumberland Telephone & Telegraph Company made application for the privilege to set their posts and run their telephone lines through the streets of Hartford, Ky., which privilege was granted. Attest: W. G. Hardwick, Clerk Board of Trustees, Town of Hartford, Ky.” It will be observed that this resolution violates the charter of the municipality in two ways: First, it was not required to lay over five days from the time it was introduced before its passage; and, second, it was passed at a special meeting of the board. It was, therefore, void, and conferred no right whatever upon appellee. East Tennessee Telephone Co. v. Anderson County Telephone Co., 57 S. W., 457, 22 Ky. Law Rep., 418; Same v. Same, 74 S. W., 218, 24 Ky. Law Rep., 2358; and Maraman v. Ohio Valley Telephone Co., 76 S. W., 398, 25 Ky. Law Rep., 784. In the second case cited, after quoting section 163 of the Constitution, the court, speaking through Chief Justice Burnam said: “‘This section of the Constitution is mandatory and [475] highly important, and, as the Anderson Telephone Company failed to comply with its provisions, or the statute passed pursuant thereto, it is clear that they had no right to use the streets or highways of the city of Lawrenceburg for the conduct of their business.” Then, after discussing numerous authorities, it is said: “In this action they [the Anderson County Telephone Company] can . only recover upon the ground that they were prevented by an injunction sued out by appellant from exercising a lawful right to occupy the streets of the city with their plant. As it is conclusively shown, they had no such legal right, but were mere trespassers, they have no standing in court.” The infirmity in the title to the franchise in each of the cases above cited was the same as in the case at bar. Originally the East Telephone Company had enjoined the Anderson County Telephone Company from operating a telephone line in Lawrenceburg, Kv., and had executed bond, according to law, as a condition precedent to the obtention of the order. This injunction was dismissed for the reason given in 57 S. W., 457, 22 Ky. Law Rep., 418. Thereupon the Anderson County Telephone Company instituted an action on the bond to recover damages for the wrongful suing out of the injunction, and its right to maintain it was disposed of in the opinion contained in 74 S. W., 218, 24 Ky. Law Rep., 2358; the court holding that it could not recover damages on the bond for the wrongful suing out of the injunction, because it possessed no lawful franchise to operate a telephone line along the streets of Lawrenceburg, and therefore was not entitled to damages for being prevented from doing what it had no right to do, it'being a mere trespasser. No practical difference can be discovered between the effect of preventing a telephone company from operating its franchise by a wrongfully obtained injunction, and from pre [476] venting its so doing by the wrongful erection of a pole which merely bunches its wires, without otherwise injuring them. The injury arises in both cases from depriving the corporation of the power to earn money by the operation of its franchise. A mere trespasser can not complain that he is prevented from continuing his wrongful act. No injury is claimed to the corporeal property of appellee. The sole injury is the prevention of the full exercise of its invalid claim of a franchise in the streets of the city. It follows, therefore, under the authorities cited, that, as it has no such franchise, it can have received no injury of which equity will take cognizance. For these reasons, the judgment is reversed, with directions to dismiss the petition.