17 S.D. 362 | S.D. | 1903
This is an appeal from an order dissolving a temporary injunction, and the question presented for our consideration is, does the erection of a telephone system in the streets of a city constitute an additional servitude, not imposed by the original appropriation, dedication or condemnation of the streets for public use, for which the .abutting property owners are entitled to compensation? It is alleged in the plaintiff’s complaint and admitted by the answer that the plaintiff is the .owner of two lots .fronting on Duluth avenue, in the city of Sioux Falls, on which he resides, and that be
It seems to be conceded that the defendant was authorized by an ordinance of the common council of the said city, if the city was authorized to adopt such an ordinance, to construct, maintain and operate a telephone line along the streets of that city. It is contended by the appellant that under the constitution of this state it was not competent for the authorities of the city to grant to the defendant the right to erect poles and construct and maintain a telephone system along the streets of that city, and that, if it had authority to grant such right the defendant could not erect the same without making compensation to the abutting property owners for the damages they might sustain by reason of the construction of such telephone system. Section 13, Art. 6, of the state Constitution reads as follows: “Private property shall not be taken for public use, or damaged without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained, and before possession is taken. No benefit which may accrue to the
Upon the main question that is presented for our determination the authorities are not in harmony, and any attempt to reconcile them would be useless. One line of authorities holds that the construction of telephone systems along the streets of cities imposes no additional servitude upon the abutting property owners, and that said owners are not entitled to compensation for any damages they may sustain by reason of the con
In Pierce v. Drew. 136 Mass. 75, 49 Am. Rep. 7, the Supreme Court of that state, in speaking upon the subject, uses the following language; “When land has been taken or granted for highways, it is so taken or granted for the passing and repassing of travelers thereon, whether on foot or horse-back, or with carriages and teams for the transportation and conveyance of passengers and property, and for the transmission of intelligence between the points connected thereby. As every such grant has for its object a procurement of an easement for the public, the incidental powers granted must be so construed as most effectually to secure to the public the full enjoyment of such easement. Commonwealth v. Temple, 14 Gray, 69, 77. * * * When the land was taken for a highway, that which was taken was not merely the privilege of traveling'over it in the then known vehicles, or of using it in the
In Julia Building Association v. Bell Telephone Co. 88 Mo. 258, 57 Am. Rep. 398, the Supreme Court of Missouri, in an able and exhaustive opinion, arrives at the conclusion that the erection of a telephone system upon the streets of the city is not an additional servitude for which the abutting fee owners are entitled to damages, and that such use is but an improved method of transmitting intelligence, and a substitute for other well known methods. In that case the court says: “These streets are required by the public to promote trade and facilitate communications in the daily transaction of business between the citizens of one part of the city and those of another, as well as to accommodate the public at large in these respects. If a citizen living or doing business on one end of Sixth street wishes to communicate with a citizen living or doing business
In Cater v. Northwestern, etc., Co., 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543, the Supreme Court of Minnesota says: “The question, then, is, what is the nature and extent of the public easement in a highway? If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easq
The order of the circuit court vacating and setting aside the preliminary injunction is affirmed.