79 W. Va. 475 | W. Va. | 1917
Upon direct application to this court by the County Court of Wyoming county for a mandamus to compel Guy White and Ulvert 0. Sanders, partners, doing business in the name of The Wyoming Telephone Company, to remove certain telephone poles which had been erected on the right of way, along certain public roads of the county, under a franchise granted by the said county court, but which now interfere with the work now in progress of permanently improving said roads, an alternative writ was issued, to which respondents demurred and also made return. Prom the pleadings, exhibits and affidavits the following facts appear-:
Under a franchise granted to it by the County Court of Wyoming county in the year 1905, the Wyoming Telephone and Development Company erected its telephone lines along certain public roads in the county. The lines and franchise have since passed to respondents, who are now operating the lines as partners, under the name of The Wyoming Telephone Company.
In August, 1915, the voters of that county voted a bond issue of $550,000, for the purpose of permanently improving
Previous to the filing of relator’s'petition in this court, White and Sanders had filed their bill in the circuit court of Wyoming county against the County Court, which suit was later removed to the circuit court of Mercer county, and procured a temporary injunction, restraining the county court, the road engineer and the contractors “from wilfully and deliberately destroying”-plaintiffs’ poles and wires, and from molesting or damaging said property “any further than was
Respondents seek to justify their refusal to remove their poles and lines on the ground that they do not interfere with public travel on the highway, and that, even if they do interfere with the work of permanently improving the highway, it is, nevertheless, the duty, either of the County Court or the contractors, to remove and reset the poles and restring the wire in a careful manner. Prom the affidavit of Blake Taylor, the civil engineer employed by the County Court to superintend the work of road construction, it appears that the roads now under contract are the leading thoroughfares of the county; that they follow the creeks, gorges and defiles, through a mountainous country, and for many miles are overhung with virgin forests and cliffs; that, in the work of construction, it is necessary to fell a great deal of timber along the right of way on the steep mountainsides, and to remove
One question presented is, upon whom rests the legal duty to remove the telephone poles and wire? Relator is a municipal corporation, a governmental agency, entrusted with the duty of locating, building and maintaining the public highways of the county. Respondents, owners of the telephone lines, are engaged in the public service, and are occupying a portion of the public right of way with their lines, by virtue of a franchise granted, pursuant to legislative authority, by the county court to their predecessors in title. The right of the public in the highway, for the purpose of travel in the ordinary modes, is a primary and fundamental right and is not limited to that portion only of the right of way heretofore traveled. Respondents have a permissive and subordinate right only, which exists only so long as it does not interfere with the primary and superior rights of the traveling public. Such primary right to occupy any and all parts of the right of way for the purpose of a roadway, necessarily implies the right to widen and improve the traveled portion of the road,
"It shall be the duty of all telephone, telegraph, electric railway or other electrical companies, to remove and reset, telephone, telegraph,, trolley and other poles and the wires connected therewith, when the same constitute obstructions to the use of the public road by the traveling public. ’ ’
This statute imposes the duty upon a telephone company to remove its poles and wires when they constitute obstructions to the use of the public road, either for travel, or for the purpose of repair. The widening and permanently improving the road, now being done, is for the benefit of the traveling public, and the interference, by the poles and wires, with this work, while not within the letter of the statute, is clearly within its spirit and intendment, and the duty to remove the poles is as imperative upon respondents as if they stood in the old roadbed and did actually hinder travel thereon. It is clearly such an interference as is contemplated by the statute. Interference with the work of improving a highway for better traveling, is necessarily an incidental interference with public travel. It is not shown that the contractors were under any contractual obligation to remove the poles, and the law certainly imposes no such duty as an incident to their undertaking.
It is further insisted that, inasmuch as section 56a (79), same chapter, authorizes the county road engineer to remove and reset poles, in the event the owner refuses to- comply with notice, previously given, to do' so himself, and to charge the expense thereof to such owner, such is the exclusive rembdy in such ease. We do not concur in this proposition. Recognizing the supreme importance to the public of keeping the highways free from obstructions, the legislature saw fit to
Respondents further urge that places where the poles might be reset with safety were not designated, and, therefore,, they were excused from not obeying the written notice to reset them. A complete answer to this contention is, they never went upon the ground, or otherwise sought to ascertain where the poles might be safely relocated during the progress of the construction work. Furthermore, the contour of the ground, along the highway, and the nature of the improvements are such as may make it wholly impracticable to relocate the line so that it may not be in the way of felling timber and blasting rock, in many places along the' highway. It may, therefore, be necessary for respondents to remove their lines off the right of way entirely, in places, at least temporarily, and until the permanent road improvement is completed. Respondents’ duty in this respect is to be determined by the necessity of the case. They must care for their own line. This does not mean that the county court or the contractors have any right to wilfully or wantonly -destroy or injure respondents’ property. They must use reasonable care not to injure the property any more than is reasonably necessary in the execution of work.
It is further insisted that the county court is estopped to demand a writ of mandamus on account of the pendency of the injunction suit in the circuit court of Mercer county. It does not appear from the pleadings and exhibits in this case that an injunction was applied for, for any other purpose than to restrain the defendants in that suit from wantonly and wilfully cutting down and destroying respondents’ poles and wires, nor is it claimed that the injunction granted goes any further than to inhibit the commission of such wilful
We are of opinion that relator has a clear legal right to demand the removal by respondents of their poles and wires, temporarily, from the right of way wherever they are so located as to. interfere with the necessary work of permanent highway improvement, now in progress, and our conclusion is to award the writ.
Peremptory writ ordered.