Chaffee v. Telephone & Telegraph Construction Co.

Morse, J. Plaintiff was the owner of lot 73 in section 3 of the Governor and Judges’ plan in the city of Detroit, and of a valuable brick building thereon that yielded a monthly rent of $350. It was ^ situated on the south side of Larned street west, in the block bounded by Larned street and Jefferson avenue on the north and south, and by Griswold and Shelby streets on the east and west, respectively. [627] The block was intersected by an alley 20 feet wide, running between Jefferson avenue and Larned street, from Griswold street westerly, to Shelby street. The defendant put up and maintained 60 wires, stretched on cross-arms, «ach 6 feet long, attached to poles planted in the ground (8 to each pole), through said alley, in the rear of plaintiff's building. There were also 12 telegraph wires stretched through said alley by another company. On March 2, 1888, a fire broke out in the building, and everything burned, except the walls. Some of the brick walls were not damaged so as to require to be taken down, but a part of them were. It is claimed that these wires prevented the fire department from extinguishing the fire. Mr. Tryon, the secretary of the fire department, testified, as did Mr. Elliott, the assistant chief engineer, that on account of these wires it was impossible for the firemen to raise the ladders, which were on trucks. Mr. Tryon, some time before the fire, notified Mr. Phillips, the manager of the defendant company, that these wires in the alley would prevent the fire department from raising its ladders in the event of a fire. Mr. Phillips replied that this was undoubtedly correct, but that the defendant company were preparing to get their wires under ground, and that they would strip that alley as soon as possible, — probably the first thing they did. When-the firemen first reached the premises the fire was in the third story. Evidence was given on behalf of the plaintiff tending to show that if it had not been for these wires the first and second stories of the building could have been saved intact, except the damage from the water thrown on the fire. The plaintiff, sues in trespass on the case, claiming damages, and contends— 1. That the alley was a private way appurtenant to his lot and building. [628] 2. That the erection of the wires by defendant in the alley was a trespass, and their maintenance a nuisance, every continuance of which was a new nuisance. 3. That, in contemplation of law, defendant, by its-wires, was at the fire, and by force and arms prevented its extinction, and in so doing was the direct and immediate cause of the destruction of plaintiffs building. The defendant claims— 1. That the defendant was not unlawfully maintaining the-wires in the alley. 2. The act complained of was not the proximate cause of the loss. 3. The damages sought to be shown by the plaintiffs, testimony are vague and speculative. The first contention-of the defendant is based upon the-long acquiescence of the plaintiff in the maintenance of the wires in the alley. The circuit judge before whom the case was tried,. Hon. Cornelius J. Eeilly, of the Wayne circuit court, at the close of the testimony directed a verdict for the-defendant. In the view that I take of the case, it is not necessary to discuss much of the evidence, or any point in the case-save the first plea of the defendant. The evidence i's uncontradicted that the building was erected five years-before the trial of the suit. Before the erection of the-burned building the lot was occupied by a dwelling-house,, which had been there a great many years. The plaintiff testifies that the wires were placed there— “ A good while ago, and were there when the brick building, which was burned, was erected.” •He knew the poles were there, and what the' wires-were used for “I asked no questions about it. From the time I first-knew the wires were there, I understood what they were for.” [629] He never asked the defendant to remove them, nor protested against their maintenance in the alley, nor in any way manifested any dissent to the action of the defendant in keeping and using them there. He testifies that one of his tenants used a telephone in his building, and says: “I never objected, or found fault with the defendant company for maintaining their wires in the alley,” I can see no legal or equitable reason why the plaintiff, tacitly assenting to the maintenance of the wires in this Alley, by allowing his tenant to use a telephone connected therewith, and by permitting them to remain there without the least objection, should be allowed, after this fire, to place the damage, or any part of it, upon the defendant, nor can I find any law to sustain his action. It is contended by the counsel for plaintiff that the maintenance of the wires in the alley was a nuisance, and a continuing one from day to day, each continuance being a new nuisance; that the defendant was liable to the plaintiff in an action at law for the obstruction of the alley every day, up to and including the day of the fire; And that therefore the acquiescence of the plaintiff for one or more days cannot be used to infer an implied license for its continuance another day. The following cases are cited to support this contention: Reid v. City of Atlanta, 73 Ga. 523; Gray v. Gas Light Go., 114 Mass. 149; Railroad Co. v. State, 20 Md. 157; Pettis v. Johnson, 56 Ind. 139. These cases do not meet the question presented here. Failure to protest against a nuisance for a long space of time will not prevent an action to abate it, upon the principle that each day of its continuance is a new nuisance; and many courts hold that the right to maintain a nuisance can never be gained by prescription. But I [630] can find no authority anywhere, and I should doubt its being good law if I did find it, that will permit a man to build by the side of these telegraph and telephone poles and wires, without any protest or demur whatsoever against their standing there, when they are on his own land, and go on for years, without finding any . fault whatever, and allowing a tenant to use one of the wires for business purposes in his building, and then, when a fire arises, and the poles are -found to hinder the firemen in their work of extinguishing it, charge up to the corporation maintaining these poles the loss occasioned by such fire. To do this would be to 'violate one of the plainest principles of justice; and the law, in my opinion, will not permit it. I do not doubt the right of Mr. Chaffee to have moved at any moment to abate this nuisance, but while he acquiesced in it, and virtually was using it, or deriving some benefit from it, through a tenant in his building, he cannot be permitted to recover damages because of its maintenance upon his premises. If there can be any assent which is not shown by express words, the plaintiff assented to the continuance of these poles upon his premises, and such assent was not a question for the jury. It was shown without dispute by his own testimony. There was clearly, to my mind, an implied assent that the poles might remain there, and no hint anywhere, not even in his testimony on the trial, that he ever considered them a nuisance until they were demonstrated to be so by the fire. Until something was done by Chaffee to notify the defendant that he found some fault with the maintenance of these poles in the alley, he could not recover damages for their being there. The judgment was right, and must be affirmed. Sherwood, C. J., Champlin and Long, JJ., concurred with Morse, J.