Willis v. Erie Telegraph & Telephone Co.

By the Court. The only controversy in this case is as to whether the erection and maintaining by a corporation of telephone poles and wires in a city street, the fee of which is in the adjacent proprietor, is an infringement of the property rights of the owner of the land, the proper- public authorities having consented to such a use of the street. Is such a case within the purposes for which city streets must be deemed to have been established, so that the individual proprietor is not entitled to further compensation ? or is this a new appropriation of the land not embraced in the original dedication or condemnation for the purposes of a public street ? Upon the consideration which followed the argument of the ease the court was divided in opinion. This led to a postponement of the decision, and before we were prepared to finally decide the question one of the justices became unable, by reason of sickness, to participate in the further consideration of the case.- It is now thought that the determination of this appeal ought not to be longer deferred; but as the four members of the court who can as yet act are equally divided in opinion upon the point involved, we can render no decision which can be deemed to establish the law. We therefore refrain from any expression of the reasons upon which our individual opinions are founded. The result is that the order of the district court is affirmed.