67 Neb. 111 | Neb. | 1903
The plaintiff applied for an injunction to restrain defendant, a telephone company, from mutilating or injuring certain trees which she had planted in the street along and adjacent to her property. The trees had been planted under the provisions of a municipal ordinance and were rightfully in the street by virtue of sections 3-7, article 4, chapter 2,
The right of an abutting owner to maintain shade trees upon or overhanging the sidewalk is general and well recognized. In many jurisdictions it is customary; with us it has the sanction of express legislation. But this right is subject to all proper uses of the street for the primary purposes for which it was dedicated or condemned. Hence, although a telephone or telegraph company is undoubtedly liable for unnecessary or wanton injury to such trees in erecting its poles and wires, liability for injuries, even amounting to removal or destruction of the trees, which are necessary or proper in the due carrying out of the public undertaking, must depend upon the much-mooted question whether use of a street or highway for poles and wires is an ordinary use within the contemida
If this proposition is maintainable, we need not consider how far the poles and wires are an ordinary use of the street. But, in our opinion, it is not sound. The right to
It does not follow, however, that the plaintiff is entitled to an injunction. In case property is not taken or injured directly, so as to dispossess or otherwise immediately disturb the owner, but he suffers some injury in an incidental right growing out of his peculiar situation or position, so that ordinary condemnation proceedings and payment of damages in advance are not practicable, the owner should be left to his remedy at law, which in such event is entirely adequate, and is not entitled to an injunction unless upon proof of insolvency or some special , circumstance. Such is the practice in cases where the construction of a railway causes damage to abutting owners. /jThe abutting owners are not made parties to condemna//tion proceedings, nor can they enjoin construction of the r road; but their remedy is in an action at law for damages. Republican V. R. Co. v. Fellers, 16 Nebr., 169; Chicago, K. & N. R. Co. v. Hazels, 26 Nebr., 364, 368, 370; Atchison & N. R. Co. v. Boerner, 34 Nebr., 240. The same remedy is employed where a city, in improving a street, impairs the easement of the abutting owner. City of Omaha v.
The petition alleges that the franchise under which the defendant is operating was granted by the city council to the mayor and one of the councilmen, by whom it was transferred to the company; and for this reason it is claimed that the grant is against public policy, fraudulent and void. If the franchise was wholly void, so that injury to plaintiff’s property was threatened by mutilation of her trees without any warrant of law and by mere trespassers, a case for an injunction might be presented. But the most that can be said under the allegations of the petition is that the circumstances might possibly afford ground for revocation or for ousting the company in a direct proceeding for that purpose. The company is possessed of the franchise. Whether the franchise was acquired or is held rightfully is to be determined only in a direct proceeding to oust the company or in á proceeding to which some one who claims a better title is a party. 4 Thompson, Corporations, sec. 5340.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Cobbey’s Annotated Statutes, sees. 3057-3061.
Cobbey’s Annotated Statutes, sec. 8736.
Does not appear in 63 N. J. Law.