Wray v. Mott

The opinion of the court was delivered by Parker, J. The writ brings up an order made by a justice •of this court appointing commissioners in condemnation to •appraise the amount to be paid prosecutrix for the right to put telephone poles in front of her property in a road, and to "trim trees as incidental to the-proper operation of the tele [111] phone line. It appears without question that the telephone line imp been installed and in operation for some years, having been originally built in 1898, and that consent was then obtained for that purpose from the then occupant of the premises, who was believed to he the owner. Some disagreement having arisen between the telephone company and the prosecutrix, who was the true owner at the time the order appointing the commissioners was made, and for some time prior thereto, the telephone company seeks, under the right of eminent domain, to acquire the above rights upon payment of proper compensation. Counsel for prosecutrix first calls attention to the fact that the defendant is. undertaking to operate under various acts which relate in their title to telegraph companies (see Comp. Stat. p. 5312 et seq.), and supplementary acts bringing in telephone companies as well, and claiming that these acts that confer any rights on telephone companies are all unconstitutional because they are supplements or amendments of the Telegraph Company act, and that telephone companies are not included In the titles of these acts. It is a sufficient answer to this to say that telephone companies have more than once been held to be included in the Telegraph Company aefs, even though not specifically named therein (Duke v. Telephone Company, 24 Vroom 341, 345) ; and that consequently the title is adequate. Next. assuming that defendant is relying upon the amendment of 1890, page 489 (Comp. Stat., p. 5316), for the right to institute the present proceedings, it is said that that amendment ls unconstitutional because of a double object in its title. To this the answer is that the defendant manifestly does not rely upon that act, because it contemplates proceedings in the Circuit Court, while the present proceedings are begun by application to a justice of the Supreme Court pursuant to the general Eminent Domain act of 1900. Pamph. L., p. 79. It is further urged that it does not appear that the township committee of the township wherein the road in question and the property of prosecutrix are situated, ever gave consent to [112] the erection of this line or designated a route through the. township. This where required must appear on the face of the petition. Winter v. Telephone Company, 22 Vroom 83. It is true that under the law as now existing, there must always he an application to the municipal body. Pamph. L. 1909, p. 288; Comp. Stat., p. 5314, § 8. But the situation was different in 1898, when the line was constructed and when the requirement was that “Whenever any * * '* telephone company organized by virtue of the act to which this is a further supplement, shall appfy to the * * * township committee * * * of any * * * township * * * in this state (the common council, township committee or other legislative body of which is authorized by law to take and appropriate lands or real estate for the opening, laying out or constructing streets therein, and to make awards for hinds or real estate taken therefor, and to levy assessments for benefits or expenses of such improvements by a hoard of assessment or otherwise), through which it is intended to construct or extend any telegraph or telephone line, for a designation of the streets or highways, &e., it shall be the duty of said body to give the comjmny a writing designating such streets, or highways”; and by the next section it is made unlawful for any telephone company “'to construct any line or erect poles in any * * * township * * * having the power enumerated in the first section without first obtaining such designation.” Pamph. L. 1888, p. 546; Gen. Stat., p. 3459. It is conceded that by reason of this act the defendant, at the time of constructing its line in 1898, was not required to obtain a designation from the township committee, because that body then had no power to take lands for streets and roads as specified in the act of 1888, hut the claim is that it is now necessary to obtain such designation under the act of 1909, and that the proceedings must he regulated by the law as now existing. The point is fairly raised by the petition which sets up in substance that the line was built in 1898, and that the township committee at that time was not authorized to take lands by virtue of the right of eminent domain. If the defendant were now desiring to construct a tele [113] phone line along this road and to secure the right of way therefor, it would of course be necessary to go to the township committee and obtain the designation required by the present law. Eut it should be remembered that that is not the situa^tion, and that the present proceeding is instituted solely because of a previous misapprehension as to the ownership of abutting property. If the person clausing to own that properly at the time the line was constructed had been the true owner, the consent given by him would bind the present owner and the line would have been a lawful line without any designation or consent by the township authorities. It is now a lawful line in every respect but the absence of consent of the owner, and has been in actual operation for about fourteen years. The question now is not whether the telephone company can lawfully build a new line through this road, but what sum ought to be paid to the owner of abutting lands and of the fee in the road by way of compensation, fox the erection and maintenance of the line. The case is not unlike that of a railroad which has taken possession of private lands without compensation and later on is made defendant in an action of ejeciment by the landowner after substantia] acquiescence in the occupation for some years. Paterson, &c., Railroad Co. v. Kamlah, 15 Stew. Eq. 93. We consider that the allegation of the petition that the township committee had no power of eminent domain as specified in the act of 1888, coupled with the allegation that the line was built in 1898 and has been maintained ever since, sufficiently m°ets the situation, and that no consent or designation of the township committee at this time need be set up in the petition. The last point made is that the petition asks that a sum be awarded as compensation for the right to do reasonable trimming of the trees in the road. Such trimming, as appears by the testimony taken in this cause, is necessary for the proper operation of the line. The question in other jurisdictions appears to have been, not whether such right could be acquired by condemnation, but whether any damages ought to be paid [114] for it,, and the decisions appear to be uniform that such damages must he paid; the inference being that the right may be acquired upon payment thereof. See also Green v. Irvington, 47 Vroom 5; affirmed, 52 Id. 723. If such right did not exist it might well be that in certain cases the character and number of .trees might altogether prevent the construction of the telegraph or telephone line. We are of opinion that a telegraph or telephone company, in building its line along the public highway, may do such reasonable trimming of the branches of trees as is reasonably essential to the proper operation oE its line without unnecessarily interfering with or destroying trees or parts thereof. The order brought up will be affirmed, with costs.