24 Pa. Super. 105 | Pa. Super. Ct. | 1904
Opinion by
We have this day filed an opinion in the case of the Pennsylvania Telephone Co. v. Hoover, ante, p. 96, which
In that case the telephone company sought to restrain the defendant from interfering with its passage over his land in the construction of a telephone line. In this case the plaintiff seeks to restrain the same company from entering upon his premises, under the right of eminent domain, the question being, as stated in the appellant’s statement of the question involved, “Whether a telephone company, duly incorporated under the provisions of the act of assembly of the commonwealth of Pennsylvania, approved April 29, 1874, P. L. 78 (see sec. 33, p. 92) is clothed with the right of eminent domain.” The reasoning employed and the general conclusion reached in the case above referred to will apply in general here. The first, second and third assignments of error are, therefore, overruled, except as to the modification of the decree hereinafter made.
What is complained of in the fourth, sixth and seventh assignments of error relates to the discussion of the general subject and to irrelevant facts and does not necessarily affect the conclusion reached. Whether strictly correct, therefore, is immaterial and the assignments need not be discussed.
The fifth, eighth, ninth and tenth assignments relate to the construction of the clauses contained in the 33d section of the general corporation act of April 29,1874, at page 92, under which the defendant claims the right of eminent domain and, as the conclusions reached in reference thereto are in exact accord with the opinion above referred to, the said several assignments are all overruled.
As to the general decree, in so - far as it relates to the poles proposed to be erected by the defendant company in the highway, it should perhaps be modified so as not to embrace them. The bill has two specific prayers in addition to those for answer and general relief: “ b. That the defendant company may be perpetually enjoined from erecting and maintaining a line of poles and wires upon plaintiff’s land other than that used for the public highways,” and “ o. That the defendant company be perpetually enjoined from erecting and maintaining a line of poles and wires on that part of public highway upon which plaintiff’s land abuts.” The defendant’s answer, in its fourth paragraph, denies that defendant is without authority to erect
We do not now determine, nor is it necessary to discuss the question of the necessity for municipal assent to the use of the highway by th,e defendant. That is not necessarily involved in this case and we do not wish, by our silence, to give assent to the position taken by the defendant in the portion of its answer herein referred to in regard to it. All that we do decide is that, so far as the plaintiff in this case is concerned, the defendant has the right, upon filing a proper bond, to use the highway for the erection of poles and the stretching of wires thereon in the erection of its telephone line. The court below says : “ Could we regard the bond filed in this case as covering the land of the plaintiff occupied by the highway, as to so much the case would be with the defendant, conceding it to be a telegraph company, but such cannot be the understanding of the defendant since the answer rests defendant’s right to the highway wholly upon the act of assembly conferring such privilege and distinguishes between it and the other land of the plaintiff.” The bond is general in its terms and applies to all the land owned by the defendant in fee and seems to us, therefore, to cover any
We would, therefore, amend the decree by omitting therefrom the words “ and upon and over that part of the public road in said township leading from Quincy to Five Forks, upon which the said land of the plaintiff abuts,” making the injunction apply only to that portion of the line proposed to be erected over the land of the plaintiff in Quincy township described in the plaintiff’s bill outside the public road, and, as so modified, the decree is affirmed at the appellant’s costs.