144 P. 491 | Or. | 1914
delivered the opinion of the court.
“It seems that strengthening the line by additional poles was an incident to the enjoyment of the easement originally acquired. It was conducive to the advancement of the purpose for which the land was originally taken; for a company vested with the right of eminent domain it is not to be restricted to such a limited exercise of that power that the public use, the full enjoyment of which alone justifies the grant of the high power of eminent domain, will be crippled in enjoyment. On the contrary, the scope of the power is commensurate with the full use of the end in view. And as in condemnation, so also, when an easement for a public use exists by grant, or presumption of grant, such grant, unless in some way restricted, is presumed to embrace every incident conducive to the entire enjoyment of the grant.”
Though the decision referred to sustained the placing of twice as many telegraph poles as had previously been set in the highway, the fee of which was undoubt
"Whether or not longer poles can he used than those now set upon the defendants’ premises so that the proper number of wires can be suspended upon cross-arms of the length indicated is not necessary now to determine, for the question is not involved.
The decree will he modified so as not to prohibit the use of any of the wires for telephone purposes. This change, however, is not deemed of sufficient importance to authorize an award to plaintiff of the costs and disbursements which it incurred in this court.
Modified.