13 S.E.2d 790 | Ga. | 1941
1. The allegations of the petition were sufficient to show that the plaintiff acquired, by actual possession for twenty years, a prescriptive casement over the defendants' land for the purpose of maintaining and operating a telephone line.
2. "Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another." Where poles and wires were used in the operation of a telephone line or lines over the lands of another, they should be considered as having marked or outlined a general area in use according to the usual and ordinary manner; and if the outer limits of this space remained the same for the prescriptive period of twenty years, the resulting easement would apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. As against general demurrer the petition was sufficient to show that in stringing the two additional wires as contemplated the plaintiff would not encroach upon any space beyond or without such prescriptive easement.
3. Nor would the existing easement be violated by the increased use which would result from stringing such additional wires in the manner alleged, such increase in use being a change in degree only and not in kind, and appearing to be reasonable. The petition of the telephone company stated a cause of action to enjoin the defendants from interfering with the plaintiff's agents in the installation of such additional wires, and the court did not err in overruling the general demurrer.
Stated more fully, the allegations were as follows: The plaintiff is a telephone company, and as such maintains a system of exchanges and lines throughout the State of Georgia and other southern States, by means of which it furnishes to its subscribers and patrons a comprehensive telephone service both intrastate and interstate. Before June 30, 1905, Commercial Telephone Company, a corporation existing under the laws of Georgia, constructed at great cost a line of telephone poles, and wires between said poles, over and across the property now owned by the defendant J. J. Kerlin. This line of poles and the wires strung thereon were used by said company in its general telephone business. On May 30, 1905, the plaintiff purchased from said company all of its properties, franchises, pole lines, rights of way, and all property of every kind belonging to it, excepting only cash on hand, book accounts, and real estate. Since May 30, 1905, the plaintiff has owned, operated, and maintained said pole line over and across the property now owned by the defendant, and has continuously used said pole line and the wires thereon in its business of rendering general telephone communication service. The plaintiff has continuously occupied the land upon which said pole line is situated since May 30, 1905, and such occupancy has been open, notorious, adverse, and exclusive and under a claim of right. Said occupancy has been evidenced by the location on said property of approximately twelve telephone poles and such wires strung between said poles as are necessary to adequately accommodate the business of the plaintiff. Said pole line has been in continuous existence since originally constructed by the Commercial Telephone Company and since the *665 purchase of said pole line from said company by the plaintiff, and the plaintiff has from time to time gone upon the said property whenever necessary for the purpose of attaching additional wires to those theretofore existing, or for the purpose of keeping the said pole line and wires clear from obstructions and encumbrances, such as growing trees and other obstructions. The plaintiff is now engaged in stringing an additional circuit of wires over the said pole line for use in its general business aforesaid, the construction of which additional circuit is essential to the plaintiff in maintaining its service to the public. Such circuit consists of two wires to be added to the number of existing circuits already strung on said pole line. The additional circuit is almost completely installed, except for that portion thereof which is to go across the property now occupied by the defendants.
On or about March 6, 1939, when the plaintiff's agents undertook to enter upon the property for the purpose of installing said additional circuit of wires and for the purpose of maintaining said pole line and keeping the same clear of obstructions, the defendants resisted the efforts of the plaintiff's agents so to come upon the said land and threatened to do them violence and bodily harm if they should enter thereon. The plaintiff has thus been prevented by the defendants from peaceably entering upon said premises for such purposes, and the plaintiff's agents can not so enter upon said property without danger to them of bodily harm. There is situated on the property of the defendant J. J. Kerlin a small locust tree, directly under the pole line and wires of the plaintiff company. This tree has now grown up and into the bottom two cross-arms and bottom two strands of wire now located upon said pole line. From the nature of the business carried on by the plaintiff, and from the nature of the electric current carried through the wires located on this pole line, the presence of the branches of said tree in and among and touching the wires on this pole line constitutes a grave danger to the general telephone service rendered by the plaintiff, in that the branches of said tree are apt to cause short circuits and other damage to said wires, and to cause a complete collapse of the service rendered over said wires, and to thus disrupt the business of the plaintiff. It is essential to the business of the plaintiff that the wires be cleared of this obstruction so that the danger therefrom may be completely removed. *666
Unless the defendants are enjoined as prayed, the plaintiff will suffer irreparable damages, in that it will not be enabled to erect said additional wires or to repair and maintain and improve the said line, its entire system of connecting lines will be greatly damaged and impeded; and the remedy a court of equity may afford is the only remedy which is adequate and complete, the plaintiff having no adequate remedy at law.
1. While the petition alleged that the tract of land in question is claimed by J. J. Kerlin, and treats him as the owner of the fee, the suit was instituted against both him and his wife, and for convenience we may employ the termdefendants, just as though they owned the land together. Also the parties will be designated herein according to their positions in the court below. It appears from the petition that, more than twenty years before the suit was filed, the plaintiff purchased from the Commercial Telephone Company a line of telephone poles and wires which was then in existence over and across the property now owned by the defendants, and which had been used by that company in the telephone business. The purchase included all of the franchises, pole lines, and rights of way of the Commercial Telephone Company; and the plaintiff from the time of such purchase has continuously used "said pole line and the wires thereon," and has continuously occupied the land for such use. It also appears that such occupancy has been open, notorious, exclusive, adverse, and peaceable, and accompanied by a claim of right. There is some discussion in the briefs in reference to prescription by possession for seven years under color of title; but the petition refers to no deed or writing as evidence of the plaintiff's purchase, and hence it discloses nothing which might be taken as color of title. Code, § 85-407;Byrom v. Riley,
2. The petition shows that from the time of the original use by the plaintiff, the claimed easement or right of way embraced approximately twelve telephone poles, and wires attached to and running between them, the number of wires not being stated. The plaintiff proposed to string upon "said pole line" two more wires, which are alleged to be necessary in the conduct of its business. In order to acquire a prescriptive title by virtue of possession alone for twenty years, such possession must be actual, and the prescription will not extend beyond "the possessio pedis." Tillman v. Bomar,
The petition alleged that the wires are to be strung "over the said pole line," and it is fairly apparent from all of the allegations that these wires are to be attached to poles whose location and dimensions are within the general area originally occupied. Thus, as against a mere general demurrer, the necessary conclusion is that the addition of these two wires will not encroach upon any space which is beyond or without the prescriptive easement; certainly not appreciably so. The case thus differs on its facts from Savannah Ogeechee Canal Co. v.Bourquin,
3. Having concluded that the petition did not show an intention on the part of the plaintiff to place the additional wires without the bounds of the existing prescriptive easement, we are next confronted with the question whether this easement would authorize the slightly increased use which would result from stringing the two additional wires. We think this question should be answered in the affirmative; the proposed additional use being a change in degree only, and not in kind, and appearing to be a reasonable and normal incident of the existing prescriptive right. Upon this particular question it seems there is no Georgia case in point, although similar questions have been dealt with in a few other jurisdictions. In Baldwin v. Bostonc. R.,
If the additional burden would be radical or unreasonable, in view of the normal and ordinary use in such cases, it might not be permissible, even though it did constitute only a change in degree; but since we must know that the addition of only two wires in the manner alleged would not be unreasonable or abnormal and would amount to a change in degree only, we are of the opinion that the right to attach them would come within the existing prescriptive easement, and that on proof of the allegations the plaintiff would be entitled to injunction to restrain the alleged interference on the part of the defendants. On the general subject, see Western Union Telegraph Co. v.
Polhemus, 178 Fed. 904; Standard Oil Co. v. Buchi,
Judgment affirmed. All the Justices concur.