18 N.Y.S. 250 | N.Y. Sup. Ct. | 1892
Recovery is sought by the plaintiff in this action upon, a number of assigned claims for damages alleged to have been sustained by the owners of the fee and persons in possession of premises running to the-center of a public highway in the country by the erection and maintenance thereupon of a telephone line by the defendant. In the county of Cortland,, in the year 1884, poles were set and wires strung for a telephone from Glen Haven to Homer, through the village of Scott; and in 1887 from Preble to-Homer; and in 1890 from Homer to Truxton. The Truxton line is conceded to have been constructed by the defendant. ■ The Preble line was built for it. under a contract with one Weed. Upon the line from Glen Haven to Homer the wire was strung by the defendant, and some or all of the poles were furnished and set by private individuals, who were compensated by tickets issued by it, permitting the holder to send a number of messages over the line-without charge. The route for these several telephone lines was selected and staked out by the defendant, and it has owned, maintained, and operated them-since their completion. The plaintiff’s assignors in most instances employed, the highway outside the beaten track for agricultural purposes, usually for the raising of hay. In the course of their construction, the sides of the highways on which these lines were built were entered upon, and holes dug in the soil, and poles six inches or more in thickness set therein, and afterwardswires were strung, connecting the poles. In some cases the ornamental or shade trees, and in others fruit trees, within or near the limits of the highway were cut and damaged to a greater or less extent by the persons who were engaged in doing the work. It appears thatsucli cutting was incidental to the construction of these several lines, and was necessary for the stringing: of the wires.
The principal question in this ease, and the first one to be met and disposed, of, is whether or not the construction of a telephone line by the erection of poles and the placing of wires thereupon within the limits of a country highway constitutes an additional burden upon the fee of adjacent lands extend
Upon the introduction of steam railways the question of their right to occupy the highway with their tracks without compensation to the owner of the fee was early presented to the courts. It was strenuously urged in their behalf that the construction of their tracks upon the highway imposed no additional burden upon the land; simply used the public right of passage in a
In view of the authorities hereinbefore referred to and cited, it is difficult to see how it can be successfully maintained that the construction of the telephone lines in question was a legitimate use of the road for highway purposes, and imposed no additional burden upon the owners of the fee therein. Unlike the city sewer, or the poles and wires set and strung for lighting urban streets with electricity, the public benefit was not the paramount consideration in their construction. These telephone lines were not necessary to the health or safety, or even devised for the especial and exclusive benefit, of the-communities through which they built. Again, the use to which the land is-put by them is not by the remotest analogy a highway purpose. Steam and street railways employ the highway for the purposes of travel, which is t(iemain object of the easement itself; and in the case of the street railway no-appreciable obstruction is caused by its tracks to the public use of the right of way. The poles upon which these wires are strung are not placed in the portion of the road actually used by the public, but outside the beaten track, and. upon the land which is or may be cultivated by the owner of the fee, and upon and over which his reserved rights and privileges may be exercised and enjoyed. There would seem, therefore, to be much better reason for claiming that an additional burden was imposed upon the land by a telephone or telegraph line than in the case of a street railway laying its tracks in the central, portion of the highway, which is never used by the adjoining owner except for travel in common with the public. • Moreover, if one line of poles cam lawfully be erected, there is no valid reason against a further or entire appropriation to such purposes of the sides of the road to the total exclusion of the adjoining proprietor from any enjoyment of the profits of the soil not used; by the traveling public. Such an event was certainly not contemplated whem the land was first taken or appropriated for highway purposes, and therefore-this element was not considered in measuring the compensation received by the owner.
It is insisted by the defendant that the damages are very inconsiderable, and-that the right to build their lines along the highways without compensating adjoining owners has long been assumed and exercised by telegraph companies in this state, and ought not now to be questioned as against a kindred, corporation. But the right of one person to enter upon the lands of another-does not depend upon the amount of damages there committed. The maxim dé minimis non ouratlex has no application in matters of absolute right, and;
Having determined that the construction of these telephone lines in question imposed upon the fee of the highway which remained in the adjoining owners a burden not included in the easement acquired by the public when it was laid out, it follows that the statute under which the defendant assumed to occupy the highway simply gives consent as far as the public is conserned, and confers no right to such occupation as against the owners of the fee. Such right must be acquired by grant or condemnation, and such acquisition must be made before the entry, as to the owners, is lawful. Bloodgood v. Railroad Co., 18 Wend. 9; Blodgett v. Railroad Co., 64 Barb. 580. There was no such acquiescence by the assignors of the plain tiff, generally speaking, in the construction of these telephone lines, as would avail as a defense to their conduct in an action in equity to compel the removal of the poles and wires. Abendroth v. Railroad Co., 122 N. Y. 1, 25 N. E. Rep. 496; Galway v. Railroad Co., 128 N. Y. 132, 28 N. E. Rep. 479. In some cases there was a protest by the assignors against placing the poles in the highway opposite their lands; in others, the entry was made in their absence; and in no instance was their consent asked, or any negotiation entered into, to acquire the right to enter and construct the line, but the defendant and its agents assumed that the law gave them the right to build it along the highway, both as against the public and the owners, and they acted accordingly.
Another question raised by the defendant in this case is that the transfer to the plaintiff of the several causes of action sued upon was in violation of the statutes against champerty. This claim is not sustained by the evidence. These assigned causes of action were many and severally small in amount. They were made more convenient of prosecution by the transfer to one person, and the subsequent bringing of a single action for the determination of the issues involved,—an event of which the defendant cannot justly complain, since the contesting of one action is far less burdensome to it then the defense of suits amounting to several score in number. The plaintiff’s attorney was not directly or indirectly the purchaser of the claims, and his conduct in the premises was not in violation of section 73 or 74 of the Code of Civil Procedure.
Code Civil Proe. § 73, provides that “an attorney or counselor shall not, directly or indirectly, buy, or be in any manner interested in buying, a bond, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing an action thereon. ”
Section 74 provides: “An attorney or counselor shall not, by himself, or by or in the name of another person, either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to any person, as an inducement to placing, or in consideration of having placed, in his hands, or in the hands of another person, a demand of any kind, for the purpose of bringing an action. But this section does not apply to an agreement between attorneys and counselors, or either, to divide between themselves the compensation to be received. ”