99 Kan. 608 | Kan. | 1917
Lead Opinion
The opinion of the court was delivered by
This action was brought by the Missouri Pacific Railway Company to enjoin Loren Sproul from removing or interfering with the telegraph wires of the company, used in connection with the operation of its trains.
The defendant is engaged in the business of moving buildings in El Dorado, and had a contract to move a building from where it stood to a place on the other side of the plaintiff’s railroad. Suspended on the same poles were the wires owned jointly by the plaintiff and the Western Union Telegraph Company, also those of the Atchison, Topeka & Santa Fe Railway Company, and a local telephone company. When the defendant was ready to move the building across the track, he notified the agent of the plaintiff that he desired to cross the track under the wires of the company, and was informed that the wires
The right of the plaintiff to maintain telegraph lines along and across public highways “in such manner as not to incommode the public in the use of such roads, streets and waters” (Gen. Stat. 1909, § 1789) is directly given by statute, and this right, may be regulated but not denied by a municipality. (Wichita v. Telephone Co., 70 Kan. 441, 78 Pac. 886; Telephone Co. v. Concordia, 81 Kan. 514, 106 Pac. 35.)
It does not appear that the city had undertaken to regulate the height at which wires should be maintained on and over the streets of the city nor to provide for lifting the wires when high structures were to be moved upon the streets over which wires had been placed. The. right of the defendant to the reasonable use of the street for the moving of buildings is not open to question. The testimony is that buildings are frequently moved along the streets of El Dorado and is not an uncommon use of the streets in other cities. It appears that the city of El Dorado had issued a license to the defendant authorizing him to move buildings, but it is not shown that any regulations had been made by the city as to the manner of moving buildings or as to the relative duties and rights of parties when buildings are being moved across streets over
The plaintiff insists that its right to the use of the streets was paramount to the rights of a house mover, although licensed by the city, and that the burden of raising the wires should be placed upon the defendant. The railway company was granted a right to the use of the streets, but took it subject to public control and to the rights of others to use the streets. ‘The grant was made, as we have seen, to be used in such a manner as not to interfere with the public in the use of the streets. The moving of buildings, derricks and such structures on the streets and other highways is not an infrequent or uncommon use. While the use may not be regarded as ordinary, at least not so common as travel over the streets by wagons, carriáges, automobiles and like vehicles, it is a frequent and a proper use and one which the plaintiff should have eontem»plated and provided for in placing its wires over the streets. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28; Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833.)
If the railway wires had been placed only ten feet high, so that a load of hay, a traction engine, a threshing machine, or some such outfit which customarily passes along the streets could not have passed under the wires without raising them, it would hardly be contended that the railway would be entitled to compensation for raising the wires in order to per
This rule is not in keeping with the view taken by this court in regard to the use that may be made of the streets, and especially where, as here, it is shown that it is a use to which they are .frequently and customarily devoted in a particular city or community.
In Indiana R. Co. v. Calvert, 168 Ind. 321, an electric street railway company sought to recover damages from a house mover who had moved a building over its railroad. A city ordinance required the street railway company to raise or remove the wires in order to allow buildings to pass. The company refused to comply with the requirement and the house mover himself loosened the trolley wires and raised them so the building could pass over the railroad. The work was done
Under the circumstances shown here we think the trial court ruled correctly in holding that the defendant should not be required to pay the expense of raising the wires of the plaintiff when the building was moved under them. Its judgment is affirmed.
Dissenting Opinion
(dissenting) : I dissent. I do not think the moving of buildings over a public road is a common use of the highway. If those telegraph wires had belonged to the city of El Dorado or to Butler county, I do not think any court would hold that they would have to be moved at public expense every time an unusual use of the highway, like house moving, was exercised. It would then be apparent to everybody that the expense of moving the wires should fall on the person who demanded such unusual accommodation.
There is at present a marked tendency towards municipal ownership of public utilities. Assuming that this tendency will continue, the doctrine announced in this decision will be overruled or some other effective way will be found to abrogate it.