115 Tenn. 416 | Tenn. | 1905
after making the foregoing statement of facts, delivered the opinion of the Court.
The question arising on the foregoing facts is whether telephone poles and wires constitute an additional burden upon complainants’ fee for which they are entitled to compensation.
In support of the liability, the following cases and text-writers are cited by complainants’ counsel, viz.: Eels v. Tel. Co., 143 N. Y., 133, 38 N. E., 202, 25 L. R. A., 640; Tel. Co. v. Barnett, 107 Ill., 507, 47 Am. Rep., 453; Tel. Co. v. Eaton, 170 Ill., 513, 49 N. E., 365, 39 L. R. A., 722, 62 Am. St. Rep., 390; Daily v. State, 51 Ohio St., 348, 37 N. E., 710, 24 L. R. A., 724, 46 Am. St. Rep., 578; Callen v. Electric Light Co., 66 Ohio St., 166, 64 N. E., 141, 58 L. R. A., 782; Tel. Co. v. Williams, 86 Va., 696, 11 S. E., 106, 8 L. R. A., 429, 19 Am. St. Rep., 908; Krueger v. Tel. Co., 106 Wis., 96, 81 N. W., 1041, 50 L. R. A., 298; Stowers v. Tel. Co., 68 Miss., 559, 9 South.,
For the defendant the following authorities are cited, viz.: McCann, v. Tel. Co., 69 Kan., 210, 76 Pac., 870, 66 L. R. A., 171; Magee v. Overshiner, 150 Ind., 127, 49 N. E., 951, 40 L. R. A., 370, 65 Am. St. Rep., 358; Coburn v. New Tel. Co. (Ind.), 59 N. E., 324, 52 L. R. A., 671; Irwin v. Great Sou. Tel. Co., 37 La. Ann., 63; Pierce v. Drew, 136 Mass., 75, 49 Am. Rep., 7; People v. Eaton, 100 Mich., 208, 59 N. W., 145, 24 L. R. A., 721; Cater v. N. W. Tel. Co. (Minn.), 63 N. W., 111, 28 L. R. A., 310, 51 Am. St. Rep., 543; Julia B. & L. Ass’n v. Bell Tel. Co., 88 Mo., 258, 57 Am. Rep., 398; Hershfield v. Rocky Mt. Tel. Co., 12 Mont., 102, 29 Pac., 883; York Tel. Co. v. Keesey, 5 Pa. Dist. R., 366; Lockhart v. Craig St. Railroad, 139 Pa., 419, 21 Atl., 26; Kirby v. Citizens' Tel. Co. (S. D.), 97 N. W., 3; Southern Bell Tel. Co. v.
Some other cases upon both sides oí the question may he found in the citations contained in the opinions of the judges in the cases above referred to, and in the footnotes, and also in the notes to 27 Am. and Eng. Encyc. Law, pp. 1008, 1009; hut in those which we have cited will be found a full and satisfactory presentation of every consideration properly entering into the inquiry.
It is obvious upon a mere casual inspection, even, that the numerical weight of authority supports the complainants’ contention. The question is to be determined, however, not by numbers merely, but upon what shall appear to us the best reasons.
The case is of first impression here. It has been held by this court that steam railways, both the ordinary commercial (Railroad v. Bingham, 87 Tenn., 522, 11 S. W., 705, Smith v. Railroad, 87 Tenn., 633, 11 S. W., 709) and dummy lines (Street Ry. Co. v. Doyle, 88 Tenn., 747, 13 S. W., 936, 9 L. R. A., 100, 17 Am. St. Rep., 933), constitute an additional burden, but that street railways (Smith v. Street R. R., 87 Tenn., 626, 11 S. W., 709; Telegraph & Telephone Co. v. Elec. Ry. Co., 93 Tenn., 492, 503, 29 S. W., 104) do not; and it is held generally in the courts of the country that electric light poles and wires, gas pipes, and lamps posts for highway purposes, sewer pipes, and water pipes, do not.
To this latter view, it is replied that the same course
We are of the opinion that the second view is the sounder one.
When land has been dedicated or condemned for street purposes, the city has the right not only to' use the surface of the ground, but also may go beneath the surface, or above it, so far as may be necessary to adapt to its proper use the land so devoted to the service of the public. We approve the authorities which hold that the chief purpose of a street is that of intercommunication between the inhabitants or denizens of a city or town and that the telephone is but a new and improved method of affecting this purpose, and hence not a new burden upon the fee of the abutting owner. If this instrument of a larger and more generous civilization were destroyed, not only would social intercourse be very greatly restricted, but the progress of all business would be retarded and its development confined within much narrower limits than now. Friends desiring to-converse with each other, whether in near or remote
For the reasons stated, we are of the opinion that the court of chancery appeals erred in rendering a decree-in favor of the complainants.
The decree of that court must therefore be reversed;.
is of the opinion that the authorities first cited present the sounder view, that telephone poles and wires do constitute an additional burden upon the fee, and he therefore dissents.