| Tenn. | Apr 15, 1916
delivered the opinion of the Court.
These proceedings were instituted by the Illinois Central Eailroad Company to restrain the defendant telephone companies from crossing complainant’s right of way with their wires in the manner in which said wires were strung at the time of these suits.
The bills were dismissed by the chancellor, and his decree was- affirmed by the court of civil appeals. The railroad company has filed a petition for - certiorari.
It is insisted upon behalf of the railroad company that it owns the fee in the land covered by the right of way, and that as owner of the fee the railroad company has title to the space' above its right of way. We have heretofore had occasion to examine the t-itle of the Illinois Central Eailroad Company to its right of way through Gibson county, and we have construed deeds similar to those relied on by the company in these cases. Railroad v. Aslin, 186 S. W., — , Jackson, 1914. We concluded that the railroad company toon only an easement, and did not take the fee in the land covered by its right of way under said deeds. To this conclusion we adhere. McLemore v. Railroad, 111 Tenn., 639" court="Tenn." date_filed="1902-04-15" href="https://app.midpage.ai/document/mclemore-v-charleston--memphis-railroad-8300121?utm_source=webapp" opinion_id="8300121">111 Tenn., 639, 69 S. W., 338, settles this question. It was
Having only an easement, the railroad company is not entitled to have its way kept open to the sky, and the grant to it is not interfered with by constructing overhead telephone wires so long as the reasonable and safe use of the eastment is not impaired. 9 R. C. L., p. 799. In notes under Flaherty v. Fleming (W. Va.), 3 L. R. A. (N. S.), 461, and Bitello v. Lipson (Conn.), 16 L. R. A. (N. S.), 193, numerous cases sustaining the foregoing statement are collected. In these cases it is shown that the owner of the fee may build a bridge for his convenience over the easement or passageway, and the owner of the easement has no ground of complaint, provided the use of his easement is not seriously obstructed.
There is no question of light and air in this case. Neither is it alleged that the wires of defendant telephone companies interfere with telegraph or telephone lines of the railroad company maintained along the right of way. The only interference with the railroad company’s use of its easement suggested is the, possibility that wires crossing the track 'may fall and injure a passenger or employee on a train beneath.
Under the proof in this case such a possibility is remote. After this suit was instituted the defendant telephone companies erected new poles of suitable character, and they strung their wires from pole to
It is probably true that when these bills were filed these wires' were not strung in a proper manner. The new poles were erected and the wires securely attached to these poles after the suits below were filed. Prior to these suits the wires were rather insecurely attached to limbs of trees on either side of the track, and there was a reasonable ground of apprehension on the part of the railroad company.
Such being the facts, we think that the defendant telephone companies should be taxed with the costs below. The costs incident to appeal, however, and the costs of this court will be paid by the railroad company.
The writ of certiorari is accordingly granted, but the decree of the court of civil appeals is affirmed, with the modification as to costs indicated.