115 Ky. 488 | Ky. Ct. App. | 1903
Opinion " oi- the court by
Reversing.
On the 10th day of August, 1899, the East Tennessee Telephone Company sued out an injunction against the Anderson-County Telephone Company, and enjoined them from “erecting poles, posts, and other apparatus preparatory to or necessary 'to be used in the operation of a telephone exchange along, over, under or across- the public streets, alleys, or public ways of Lawrenceburg,” upon the ground that by -the contract with the city of Lawrenceburg they had an exclusive franchise to establish and operate a telephone system therein. The Anderson County Company defended this suit upon the ground that the ordinance adopted by the city council granting the franchise to the plaintiff did not lie over five days, as required by section 3636 of the Kentucky Statutes, and was, therefore, void. This contention was sustained, and the East Tennessee Telephone Company’s petition dismissed. See East Tennessee Telephone Co. v. Anderson Tel. Co. (22 R., 418), 57 S. W., 457. Thereupon the Anderson County Company brought this suit for damages on the injunction bond executed by the East Tennessee Telephone Company at the institution of their suit. In the first paragraph of their petition they allege, “that they had authority to construct and operate a telephone line and exchange in the city of Lawrenceburg.” This allegation is specifically denied in the answer, and the
Section 163 of the Constitution is as follows: “No telephone company shall be permitted or authorized to construct its tracks, lay its pipes or mains, or erect its poles, posts or other apparatus along, over, under or across the streets, alleys or public grounds of a city or town, without the consent of the proper legislative bodies or boards of such city or town being first obtained; but when charters have been heretofore granted conferring such rights, and work had in good faith been begun thereunder, the provisions of this section shall not apply.” This section of the Constitution is mandatory, and highly important, and, as the Anderson Telephone Company failed to comply with its provisions or the statute passed pursuant thereto, it is clear that they had no right to use the streets or highways of the city of Lawrenceburg for the conduct of their bus
A suggestion by counsel we think admirably illustrates the soundness of the rule. Suppose, says he, that an administrator of an estate, finding some person about to commit waste by cutting down and carrying -off valuable timber trees,, were to procure an injunction, and give bond to answer in damages, which should be dissolved on the ground that an administrator had nothing to do with the real estate of his decedent. Can it be claimed that the defendant in such case could bring a suit against the administrator and his surety on the injunction bond, showing 'that, if he had not been enjoined, he could have cut down and carried off $2,000 worth of trees? In the former suit it was decid
Judgment reversed, and cause remanded for proceedings consistent with this opinion.