Gulf Coast Ice & Manufacturing Co. v. Bowers

80 Miss. 570 | Miss. | 1902

Terral., J.,

delivered the opinion of the court.

The municipal authorities of the city of Bay St. Louis was empowered by its charter (sec. 42, p. 446, laws 1886) to light the streets of the city for the public benefit, and on the 21st day of December, 1899, made a contract with the appellant company for that purpose. In pursuance of this authority and contract) the appellant erected poles on and along the streets of said city, and attached to them the wires and other necessary appliances for lighting the streets with electricity, and inaugurated and put in operation an electric light plant, which lighted the streets of the city in conformity with their authorization and contract. The appellee is the owner of four or more properties abutting on Front street, which is the principal street of the city, and its crowning glory, and along said street and adjacent to the lots of appellee, and without his 'consent, the appellants erected their poles and strung their wires, to the great disfigurement, as is said, of the view from said .several properties of appellee. The properties or lots of appellee upon Front street extend to both sides of the street, and a considerable element of their value, it is alleged, consists of an open and unobstructed view of the Mississippi Sound. Appellee, alleging in his bill of complaint the inauguration by appellants of said electric plant and the erection of their poles along the streets abutting his several properties, without his consent, and to his great injury and annoyance, sought and obtained a preliminary mandatory injunction requiring appellants within twenty-four hours to remove from his lots, as a nuisance, thier poles, wires, and other appliances for lighting the streets. The injunction was subsequently modified so as to restore the poles, wires, and appliances removed thereunder; but from a refusal of the court to dissolve the injunction entirely the appellants bring their appeal.

The authorities are quite uniform that a city or town may light its streets as a means of making them more safe and convenient for public travel. The right to light the town is presumed to have been acquired and paid for, as incident to the right of public passage, when the property was condemned or dedicated for public use. In other words, the taking of the land for use as a street includes not only the right of passage, but of securing a convenient and safe passage; to light it, if you please, for that purpose. It is not a new taking of property for public use, but a completing to that extent of the uses of the first taking by adding appliances included within it, and now constructed by reason of the public need. Keasby, Electric Wires (2d ed.), secs. 29, 76, 77, 82, 84; Lewis, Em. Dom. (2d ed.), sec. 126; Palmer v. Electric Co. (N. Y.), 52 N. E., 1092 (43 L. R. A., 672); In re Public Lighting (Mass.), 24 N. E., 1084 (8 L. R. A., 487); City of Newport v. Newport Light Co., 84 Ky., 166. While the lighting of the streets of a city may be a great convenience to the traveling public, especially under some conditions, the poles, wires, and other necessary, appliances for so doing are often a positive inconvenience to the abutting landowner, considered merely as such. But the proprietary rights of the landowner, whether the fee or a mere easement thereon be in the public, (Theobold v. Railway Co., 66 Miss., 279 (6 So., 230; 4 L. R. A., 735; 14 Am. St. Rep., 564), are greatly modified by the rights of the public, which is entitled to a free passage over the street, and to the benefit of lights constructed and operated for that end. And if a town or city may light its streets, as being an object for which the street is opened, without paying the abutting property owner damages for the erection of needed appliances therefor, it must follow that the municipal authorities may authorize some other person to furnish such lights. Keasby, Electric Wires (2d ed.), sec. 111; Johnson v. Electric Co., 54 Hun., 469 (7 N. Y. Supp., 716). It is said the poles and wires of appellant are unsightly, and are a disfigurement to the property, and an especial injury in that it obstructs the open view of the sea. Similar erections in all cities and towns present, though perhaps in a less degree, like inconveniences to the owners of palatial residences, but disfigurements of this kind to property are not the subjects of compensation, or, if so, they are conclusively presumed to have been paid for upon the opening of the street and its dedication to public use.

It is further said that the poles used by appellant are green pine poles, with the bark peeled, and, from rapid decay, are dangerous, and not lightwood poles, as required by the city ordinance; but this grievance, if true, is not made a subject of controversy under the allegations of the bill of complaint herein, which are not framed to present it.

It is also complained that the electric light system of appellant is partly used for private purposes, but it appears from the record that ail the poles set by appellant are necessary for executing the objects of public convenience, and in such case a mandatory injunction is not an appropriate remedy. Johnson v. Electric Co., 54 Hun., 469 (7 N. Y. Supp., 716) ; Keasby, Electric Wires (2d ed.), sec. 30.

2. The contract of the authorities of the city of Bay St. Louis with appellant, as disclosed in this proceeding, is a valid contract, and authorized the latter to make the erections for lighting the streets of the city, and we see nothing in the mode of construction or operation of the plant that authorizes an injunction of any kind.

An injunction may not be granted in this state except where right and justice demand it, and then only when the grounds for its issuance have been satisfactorily shown to the officer granting the writ. Code 1892, §§ 557, 916. Our statute makes no distinction in respect to the several kinds of writs of injunction; but in respect to mandatory injunctions, which partake of the character of judicial process, it is a sound rule that a writ of this character should not issue unless the right to it is so satisfactorily shown that there can be no reasonable doubt of its propriety. The case made should be such that there can be no probability that the defendant can make a valid objection to it. Unless the grounds for a preliminary mandatory injunction be inexpugnable, it is the safer rule to hear both sides, before directing its issueance. Pom. Eq. Jur., sec. 1359; High,. Inj., sec. 2; Story, Eq. Jur., ch. 23.

The grant of the preliminary mandatory injunction in this case was error. In fact, the case presented by the bill does not warrant an injunction of any sort; wherefore the injunction is dissolved, and the case is remanded for further proceedings.

Reversed and remanded.