McCann v. Johnson County Telephone Co.

The opinion of the court was delivered by Johnston, C.J. : In constructing a telephone line the Johnson County Telephone Company was proceeding to plant poles along the highway in front of the farm of Michael McCann. The poles were placed near the hedge-fence on the line dividing the farm from the highway, and were so located as to interfere with the trimming of the hedge, and also with the cutting of the grass and weeds on the roadside.. He brought a suit in injunction, alleging that the company had not obtained his consent to plant telephone poles on the highway opposite his farm ; that his interest as the owner of the fee had not been conveyed, condemned or otherwise appropriated; arid that no compensation had been paid to him for the proposed use. A temporary order, restraining the company from placing poles opposite the plaintiff’s farm, was issued, bub upon the final hearing it was dissolved and a perpetual injunction was denied. The question presented now, as at the first hearing of the proceeding, is whether the telephone company may occupy the highway in front of McCann’s farm without obtaining his consent or paying him compensation for the right. Was this a contemplated use when the road was established, or does it constitute an additional servitude ? It is conceded that if the use was not within the original purpose of the highway, the planting of the poles there without consent or compensation would trench upon the constitu — 212 — tional rights of McCann. The adjoining owner of land holds the fee in a rural highway, and retains the ownership of the land for all purposes not incompatible with its use as a public highway. (Caulkins v. Matthews, 5 Kan. 191, 199; Comm’rs of Shawnee Co. v. Beckwith, 10 id. 603.) Owning an estate in the land, he cannot be deprived of it by any corporation until full compensation has been made or secured to him, and a possible or probable benefit from the proposed improvement is not to be taken into consideration. (Const., art. 12, § 4.) But if compensation was paid when the highway was established, or, rather,fif the easement originally given or obtained included such a use as the maintenance of a telephone line, nothing was taken from the plaintiff and the injunction was rightfully refused. The purpose of a telephone—the transmission of intelligence between people and places—is a public one, which the public may authorize, regulate, and control. The legislature has authorized the organization of such corporations, and has provided that they may build and maintain lines in the streets and highways of the state ; and, further, that they may avail themselves of the power of eminent domain to obtain the right to build and maintain lines upon and over the property of others. (Gen. Stat. 1901, §§1251, 1252, 1342, and 1343.) The highway is established for the use of the public, and the telephone line is not only a public convenience, but it is a recognized public use. Is it a contemplated and appropopriate use of a highway, or is it one outside the scope of a rural highway, and therefore an additional burden, for which compensation must be made to the owner? . Few questions- have received more consideration from the courts in recent years, or given rise to more — 213 — conflict of judicial opinion, than this one. In some cases the use has been limited to travel, by such methods as were in vogue when the highway was established, while others include all methods, old or new., and hold it to be immaterial whether they were in use, or even thought of, when' the easement was acquired. Some confine the use to moving persons, animals, and vehicles, while others would include stationary appliances used in the propulsion or conveyance of persons and things over the highways. By some it is limited to transportation of persons and things tangible, while others extend it to communications which are transmitted unseen, by electric vibrations. Some treat it as an additional burden when the fee of the highway is in the adjoining owner, and others do not regard it to be such whether the fee is in the public or the adjoining owner. In still others a distinction is made between highways in the country and streets in the city, holding that city streets have always been designed and used for purposes not appropriate to rural highways. The purpose of the highway is the controlling factor. It is variously defined or held to be for passage, travel, traffic, transportation, transmission, and communication. It is a thoroughfare by which people in different places may reach and communicate with one another. The use is not to be measured by the means employed by our ancestors, or by the conditions which existed when highways were first devised. The design of a highway is broad and elastic enough to include the newest and best facilities of travel and communication which the genius of man can invent and supply. This theory is well brought out in Cater v. Northwestern Telephone Exchange Co., 60 Minn. 589, — 214 — 543, 63 N. W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543. It was there said : "If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of - a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals; and, next, a way for vehicles drawn by animals — constituting, respectively, the ‘iter,’ the ‘actus’ and ■ the ‘ via ’ of the Romans. And thus the methods of using public highways expanded with the growth of civilization, until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Plence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterward be discovered and developed in aid of the general -purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired, and are more onerous to him than those then in use.” That court held that the construction and maintenance of a telephone line on a country highway did not impose an additional servitude upon it, but was to be regarded more as a newly-discovered method of using an old public easément. In The Julia Building Ass’n v. The Bell Telephone Company, 88 Mo. 258, 268, the question at issue was whether the erection and maintenance of a telephone line along a street of St. Louis subjected it to a new servitude inconsistent with the purpose of a street, and for which an abutting owner might claim com — 215 — pensation. The court ruled that it was not an additional burden, and in doing' so held that streets were designed not only for travel but also to facili-' tate communications between the citizens of the city, and that when the public acquired the right to a street by any method it could be appropriated not only to such uses as were common at the time but also to all such new uses as advanced civilization might suggest or the public good require; and as showing that the telephone would relieve, rather than add to, the servitude of the street, it was said : ‘1 If a citizen living or doing business on one end of Sixth street wishes to communicate with a citizen living or doing business on the other end, or at any intermediate point, he is entitled to use the street, either on foot, or horseback, or in a carriage, or other vehicle, in bearing his message. The defendants in this case propose to use the street by making the telephone. poles and wires the messenger to bear such communications instantly and with more dispatch than any of the above methods, or any other known method of bearing oral communications. Not only would such communications be borne with more dispatch, but, to the extent of the number of communications daily transmitted by it, the street would be relieved of that number of footmen, horsemen, or carriages. If a thousand messages were daily transmitted by means of telephone poles, wires and other appliances used in telephoning, the street through these means would serve the same purpose, which would otherwise require its use either by a thousand footmen, horsemen or carriages to effectuate the same purpose. In this view of it the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message transmitted, relieve the street of a serviture or use by a footman, horseman, of carriage.” A leading case on this question was determined by — 216 — the supreme court of Massachusetts in 1883. Under a statute a telegraph company was about to build a line in the streets of Brookline, and adjacent owners sought to enjoin the authorities from granting the privilege to the company, claiming that the statute was unconstitutional because it did not provide for compensation to the owner of the fee in the highway. The court decided that the transmission of intelligence by electricity was a business of a public character, to be exercised under public control; that when land is once taken for a public use and is afterward applied to another similar public use no new claim for compensation can be sustained by the owner of the fee ; that the land taken or granted for highways, for travel on foot, on horseback, or with vehicle, conveying either persons or property and transmitting intelligence, is an easement which should be liberally viewed so as to secure to the public the full enjoyment of such use ; and that the transmission of information by electricity was a use-similar to, if not identical with, the purpose for which highways were established, and, therefore, no additional servitude was imposed nor other compensation required.. (Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7.) The supreme court of Michigan had before it the specific question whether telegraph-poles on a rural highway constituted an additional servitude for which the owners of the fee must be compensated. In answer to the question the court said : “Public highways are under legislative control. (Cooley, Const. Lim. 588.) They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon their use are only such as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement. When the highway is not restricted in — 217 — its dedication to some particular mode of use, it is open to all suitable methods. ; . . When these lands were taken or granted for public highways, they were not taken or granted for such uses only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country or the discoveries of future times might demand.” (People v. Eaton, 100 Mich. 208, 211, 59 N. W. 145, 24 L. R. A. 721.) The court therefore held that the telegraph was a highway use and did not impose an additional burden upon the land occupied. In Kirby v. Citizens’ Telephone Co., 97 N. W. (S.Dak.) 3, in deciding that a telephone system on the streets of a city was not an additional servitude, the court remarked: “The streets of a city or incorporated town are, in contemplation of law, dedicated, appropriated or condemned for all proper street uses, and, when a street is used for any proper street purpose by permission of the city authorities, such use does not constitute an additional servitude, though such use may not have been known when the streets were dedicated, appropriated or condemned for street purposes, and the abutting fee-owner is not entitled to compensation for any damages he may sustain by reason of such use. The streets of a city are now used for many purposes unknown in former times. . . . The telephone is but a step in advance of former methods of conveying intelligence and information, and is a substitute for the messenger and carrier of former-times.” (Other cases and text-books cited as authorities are : Magee v. Overshiner, 150 Ind. 127, 49 N. E. 951, 40 L. R. A. 370, 65 Am. St. Rep. 358; Coburn v. New Telephone Co., 156 id. 90, 59 N. E. 324; Hershfield v. Rocky Mt. B. T. Co., 12 Mont. 102, 29 Pac. 883; The People, — 218 — ex rel. McManus, agt. Thompson, 65 How. Pr. 407; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; Hewett v. Telephone Company, 4 Mackey (D.C.) 424; Lockhart v. Railway Co., 139 Pa. St. 419, 21 Atl. 26; Maxwell v. Telegraph Co., 51 W. Va. 121, 41 S. E. 125; Castle v. Bell Telephone Co., 49 Hun, App. Div. 437, 63 N. Y. Supp. 482, 7 Am. Elec. Cas. 621; Keasb. Elec. Wires, 2d ed., §§ 102, 103.) The telegraph used in the operation of a railroad is held to be a railway use and not an added servitude upon a railroad right of way. In a certain sense the telephone is an adjunct of the highway as the telegraph is of the railway. It serves to direct travel and transportation over the highway ; it keeps persons using the highway and those in authority advised of its condition, and, if necessary, they- can provide for repairs ; and it enables those who have sent teams and vehicles over it to learn the progress that has been made in the journey. The messages transmitted over the line are a substitute for the messengers who formerly passed over the highway, and thus to a great extent relieve it from the burdens and wear of travel. No modern invention has contributed more to commercial and social intercourse than the telephone. It is an appliance of'great public utility, and is coming into general use in the country as well as in the city. Indeed, it seems to serve a more beneficial purpose, and is a greater convenience to rural residents widely distant from business centers and from one another than it is to residents in cities. The question, however, is not determinable by the difference between urban and suburban conveniences and necessities, or by the fact that the fee may be in the adjoining landowner in one instance and in the public in the other; — 219 — it must be decided by the scope and purposes of the highway, and whether, in country or city, it is a means of travel and transportation, a medium of transmission, of intercommunication, between the people located in different places. We are aware that there are authorities holding that the telephone is not one of the purposes contemplated when the highway was established; that it is not a highway purpose, and, therefore, that it is an additional burden upon the highway, for which compensation must be made to the adjacent owners. We think, however, that the more liberal view should be taken, which is in keeping with the progress of the times, holding the easement to include the modern methods of travel and communication. The court ruled correctly in refusing the injunction, and therefore its judgment will be affirmed. Smith, Greene, Atkinson, JJ., concurring.