176 Ind. 177 | Ind. | 1911
Appellee sued appellant to abate a nuisance, consisting of an alleged unlawful occupancy by appellant of the streets and alleys of the city of Mount Vernon with poles and wires used by it in conducting a telephone business in that city. There was a trial by the court, and a judgment for appellee.
The errors assigned are the overruling of appellant’s demurrer to the complaint, and the overruling of its motion for a new trial.
The grounds assigned for a new trial, and argued in appellant’s brief, are that the decision of the lower court was not sustained by sufficient evidence and was contrary to law. The record discloses the following facts: Appellant is a corporation, organized under the laws of Kentucky, and engaged in operating telephone lines and exchanges. On January 6, 1891, the city of Mount Yernon enacted an ordinance, granting to appellant the right to erect and maintain telephone poles and lines in the streets and alleys of the city for a limited time. By section four of the ordinance, the city reserved the right to repeal it at any time after fifteen years from its passage. Appellant, in writing, accepted the ordinance, and agreed to be bound by its conditions, and thereupon constructed a system of telephone lines in the streets and alleys of the city, and operated a telephone exchange therein, pursuant to the provisions of the ordinance.
On February 20, 1899, the city council of Mount Yernon adopted an ordinance, granting to the American Telephone and Telegraph Company of Indiana, its successors and assigns, the right, privilege and authority to construct, operate and maintain lines of telephone, including necessary poles, wires and fixtures, upon, along and under the highways of the city, upon certain terms and conditions. One of the conditions was that the company should furnish, free of cost to the city, space on its poles for fire alarm and police wires, and another required the company to indemnify the city against damage or liability caused by the negligent construction or maintenance of its lines. To this ordinance was appended the following:
“The American Telephone and Telegraph Company, of Indiana, hereby accepts this ordinance, and all the rights and the terms and conditions imposed.”
This blank form of acceptance was never signed by the
On February 6, 1906, the company, in writing, assigned to appellant, for $500, all the right, title and interest that it had to maintain telephone poles, wires and fixtures upon the highways of the city, under said ordinance. When this assignment was made, appellant knew that the American Telephone and Telegraph Company had never taken any action under the ordinance, and the assignment was procured by appellant because its own franchise was about to expire. No formal notice to the city was given by appellant of its purchase of the franchise, nor was any record made of the assignment on appellant’s records at Mount Vernon. The only record made by appellant of the transfer was at appellant’s office at Nashville, Tennessee. After the assignment, appellant never executed any written acceptance of the ordinance in question. Appellant did business under its own name, at Mount Vernon, after the transfer, just as it did before, and never claimed to be the successor, as a corporate enterprise, of the American Telephone and Telegraph Company, but does claim that it was the assignee of the franchise of the company to do business in the city of Mount Vernon.
After February 6, 1906, appellant entered into negotiations with appellee for a fifteen-year franchise in its own name, but no agreement was ever reached, because of differences of opinion in regard to rates.
On February 4, 1907, the city council of Mount Vernon repealed the ordinance of January 6, 1891, that granted appellant the use of its streets for its telephone business, and
After the purported transfer by the American Telephone and Telegraph Company of its franchise to appellant, the latter strung wires and cables on the old poles, erected new poles in the streets of the city, and extended its 'business therein. Appellant does not claim any right to use the streets by virtue of the ordinance of January, 1891, but rests its claim thereto on the assignment to it of the franchise of the American Telephone and Telegraph Company.
Appellee claims that the ordinance of February 20, 1899, purporting to grant the American Telephone and Telegraph Company the right to use the highways of the city, never became effective, because it was never accepted by the company, and, consequently, when it executed the assignment to appellant it had no franchise to transfer. If this contention is correct, the judgment of the lower court should be affirmed, for the reason that appellant’s defense rests upon the validity of the franchise granted to the American 'Telephone and Telegraph Company.