168 Wis. 125 | Wis. | 1918
It does not appear from the record upon what ground the trial court denied plaintiff relief,, but presumably it was upon the ground that the defendant’s license from the city authorized it to trim the trees sufficiently to enable it to give efficient service. If that was the basis of the court’s ruling it erred, because a license from a city to maintain a telephone system upon its streets gives the holder thereof no right to enter upon land within the street and commit acts injurious thereto without the consent of the owner of such land. The maintenance of a telephone line is an additional servitude to the public easement in a highway. Krueger v. Wis. Tel. Co. 106 Wis. 96, 81 N. W. 1041; 24 L. R. A. 721, note, and cases cited. And cities cannot empower either persons or corporations to take private property or increase a servitude without due compensation. Courts generally sustain the doctrine that the owner of land in a street or of land abutting the street is entitled to compensation for injuries to his shade trees in the street occasioned by their being trimmed without his consent by a telephone company. Norman M. & G. Co. v. Bethurem, 41 Okla. 735, 139 Pac. 830, 51 L. R. A. n. s. 1082 and note; Slabaugh v. Omaha E. L. & P. Co. 87 Neb. 805, 128 N. W. 505, 30 L. R. A. n. s. 1084; Cartwright v. Liberty Tel. Co. 205 Mo. 126, 103 S. W. 982, 12 L. R. A. n. s.
This court is in accord with the doctrine announced in the cases above cited. For authorities holding the contrary view see notes to L. R. A. cases above referred to. But we need not place our decision on the common-law liability of telephone companies to respond in damages for injuries to shade trees occasioned by unpermitted trimming. Our legislature has expressly given the remedy and fixed the amount of damages recoverable. Sub. 6, sec. 1778, Stats., reads:
“Nothing contained in this section shall authorize or empower such . . . telephone . . . company or corporation, to in any manner destroy, trim or otherwise injure any shade or ornamental trees along any such lines or systems . . . except by the consent of the owner, and any person or corporation violating any of the provisions of this section shall be liable to the person aggrieved in three times the actual damage sustained besides costs.”
Under the provision of this section it became the duty of the trial court to grant plaintiff’s motion for judgment for treble damages.
Whether a telephone company must respond in damages for unpermitted trimming of shade trees in a case where condemnation proceedings have been had we do not decide.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff for $105 and costs.
