53 Ind. App. 230 | Ind. Ct. App. | 1912
— Appellant brought this action against appellee in the Adams Circuit Court to recover damages. The amended complaint in three paragraphs is lengthy, and we will not set it out in full. The first paragraph avers in substance, however, that appellant and appellee are corporations duly organized under the laws of the State of Indiana. That appellant had first constructed its telephone system in various towns and cities and through the highways connecting the city of Ft. Wayne with the city of Decatur, Indiana, and that afterwards appellee constructed its electric railway in close proximity to and parallel with appellant’s telephone line and by reason of the strong electric current necessarily used by appellee to operate its cars, appellant’s telephone wires and exchanges were greatly interfered with and its business interrupted; that this interference was caused by what is known as “conduction,” that is, the currents of electricity employed by appellee were of such an intense character that they escaped through the ground and intercepted at some point or another the return currents of electricity used by the telephone company which were of less voltage, and to escape this influence it was required to run its wires a great distance away from appellee’s wires. The second paragraph is quite similar to the first except that it is stated in this, that the interference to appellant’s wires was caused by what is known as “induction”, that is, the high voltage currents of electricity used by appellee placed in motion a sympathetic vibration in appellant’s wires which were in close proximity to that of appellee, and by reason of the induction thus produced, appellant’s wires were so influenced that they had to be moved a long distance^ away
The record discloses that a demurrer was filed to the first and second paragraphs of the amended complaint and that the court sustained a demurrer to “each paragraph of the amended complaint.” The separate errors assigned for reversal are (1) sustaining appellee’s demurrer to the first paragraph of complaint, (2) sustaining appellee’s demurrer to the second paragraph of complaint, (3) sustaining appellee’s demurrer to the third paragraph of complaint, (4) rendering judgment against appellant on the demurrer.
Appellee has based its argument for the sufficiency of its complaint upon the case of Cumberland Tel., etc., Co. v. United Electric R. Co. (1893), 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236. In Beiser, Law of Conflicting Uses of Electricity and Electrolysis 81, it is said of this ease, “The principles involved may be summarized as follows: 1. The operation of a street railway in the street, with any incidental inconvenience or damage to objects in the street, is a legitimate use of the streets within the purpose of their original dedication, but. (a) This principle does not extend to property rights outside the street. 2. Telephone and other companies may not obstruct the operation of street railways. 3. Both telephone and railway companies must exercise their powers with a careful and prudent regard for the other’s rights. 4. If the ‘ordinary use’ of a railway franchise be such as to injure the telephone franchise unnecessarily, the cost of any change necessitated must fall upon the street railway. 5. The railway company is not liable
Judgment reversed.