Malone v. Waukesha Electric Light Co.

Winslow, J. There is a very important question which might well have been litigated and decided in this case, and that is the question whether the placing of poles in the street by an electric lighting corporation for the purpose of placing electric light and heat wires thereon is an additional burden [491] upon tbe fee, so as to require condemnation proceedings, as. against tbe adjoining owners. Tbe question does not seem to bare been seriously considered in tbe court below, and it bas not been argued in tbis court; and, in view of its great, importance, and tbe fact tbat tbis case may be properly de--’ cided without reference to it, we shall not take it up, but wait until it may be fully presented on argument and authority. Conceding, for tbe purposes of tbe case, tbat tbe franchise-granted b;/ tbe city council gave to tbe electric light company tbe right to place its poles in tbe streets without condemnation, it did not give tbe right to place those poles anywhere tbat tbe company might choose, against tbe consent of tbe lot owner. Under tbe terms of tbe law governing tbis subject in cities of tbe class to which Waukesha belongs, tbe timo and manner of using tbe streets for placing electric light poles therein shall be determined by tbe board of public-works, subject to review by the common council. Sec. 925 — 88, Stats. 1898. Such, also, are tbe terms of tbe ordinance or franchise passed by tbe common council. There-can be no doubt tbat, until tbe board of public works bas designated the particular places-where tbe poles are to be-placed, the electric light company bas no power, against the-objection of tbe owner, to place a pole in front of a man’s property. Until the city authorities have exercised tbe power given them, tbe property owner’s right must be paramount. It appears by tbe findings in tbe present case, upon sufficient evidence, tbat neither tbe board of public works nór tbe city council ever authorized a pole to be put at tbe point where-tbe company bad put it when tbis action was commenced, nor did they ever authorize the trimming of trees for tbe purpose. Until such authorization had been made, the rights of tbe plaintiff must be considered to be absolute, and it follows from tbis tbat tbe judgment must be affirmed. Costs were adjudged against the electric light company [492] alone, and tbis is assigned as error; but, as tbe awarding of ■ costs is discretionary in equity cases, and no abuse of discretion appears, tbere can be no reversal of tbis part of tbe .judgment. A motion by respondent upon tbe argument to dismiss tbe -appeal because of alleged defects in tbe notice and undertaking is overruled, without costs, and is not deemed of suffi•cient importance to require discussion. By the Court. — Judgment affirmed.