31 Pa. Super. 221 | Pa. Super. Ct. | 1906
Opinion by
The plaintiff is the owner of a lot, with a three-storied dwelling house thereon, situate on the east side of Lawrence street, in the city of Philadelphia, and under his deed has the right to the use of, and the right to build over, an alley, twenty-two inches in -width, laid out and opened for the accommodation of his premises and the adjoining premises on the north. At the height of about seven feet the houses upon these two lots project over this alley and adjoin.
The defendant was duly chartered under the laws of this commonwealth, and authorized by the ordinances of the city
In 1900, under a permit duly issued in accordance with the city ordinances, the defendant erected between the house line and the curb, and directly in front of the entrance to the alley, a terminal, or, as sometimes designated, distributing, telephone pole, sixteen inches in diameter at the sidewalk, about fifty-nine feet high, and distant from the house line between nine and ten feet. Alongside the pole is a metal tube in which cables are carried up, and at the top the wires, which radiate in different directions, are protected by an iron hood or drum.
We do not understand it to be disputed that in height, diameter, location and other particulars the pole conforms substantially to the permit, and to the regulations of the department of public safety therein referred to ; at any rate, no variance of that kind is set up, either in the pleadings or in the appellant’s brief, as a ground of recovery. Nor do we find in the plaintiff’s statement of claim any specific averment of negligent or improper construction or operation, and no evidence was adduced to support such averment, unless it be that which relates to the drainage pipe.
Before discussing the main question we shall consider the evidence bearing upon the alleged interference with the drainage as an element of the damages recoverable in this action. It is necessary to consider this question, because the learned judge charged the jury (fourth assignment) that if the erection of the pole injured the plaintiff, in that it caused dampness in the cellar, he was entitled to be compensated for that. There was evidence that owing to something wrong with the plaintiff’s drain the water backs into his cellar. He testified : “ I say our drainage pipe must be broken with this pole, or by this pole, and the drainage goes back again in our cellar.” His witness, Mallo, who is a plumber, testified that he thought a vent box running down to the trap had been broken, but later, when asked to give his reason for this belief, he answered: “ Well, they had had water in the cellar constantly, and therefore I think there was something wrong with the drain.” He testified further that the drain is within about eight inches from‘the pole, and that he did not dig down to ascertain the cause and
The plaintiff claimed further that the pole is an injury to him, in that it (1) deprives him of the light that otherwise he would have; (2) impairs access to his premises through the alley; (3) interferes with the comfort>of his house by reason of noises from what is called the drum. It is argued by the appellant that owing to the position of the pole it cannot affect the light of the premises at any season of the year or at any hour of the day. But the plaintiff testified positively from his experience and. observation before and after the erection of the pole that it does darken some of his windows nearest to it. We cannot say that this testimony was so obviously absurd that the court ought to have withheld the question from the jury. In support of the allegation of interference with access, the plaintiff showed that, by reason of the narrowness of the entrance to the alley and the position of the pole directly in front of it, it was impossible to take very long pieces of timber and lumber through it for the purpose of- certain repairs and alterations he made in the rear. This testimony based on actual experiment shows, not only the inconvenience the plaintiff was put to on that particular occasion, but also that access to his premises will be interfered with so long as the pole is maintained in its present position. Therefore it is not a mere temporary injury that is alleged. The impairment of access may not be very serious, but it is not so slight that the law will not
The right of the defendant to erect and maintain the pole and wires as part of its telephone system without the consent of the plaintiff, upon making or securing just compensation, is not disputed; it is argued by his counsel that the defendant possesses the right of eminent domain as to his land lying within the limits of the street, and this view of the law is in harmony with Penna. Telephone Co. v. Hoover, 24 Pa. Superior Ct. 96; s. c., 209 Pa. 555, and Pfouts v. Penna. Telephone Co., 24 Pa. Superior Ct. 105. But this is not the point upon which the case turns. Proof that, by reason
The principal question raised in this case has not been decided by our Supreme Court in a case involving the same state of facts. But the general principles, which have received recognition in the cases above cited, as to the servitude in favor of the public in city and borough streets, lead to the conclusion that the erection of telephone poles and wires in such streets, under charter right, with municipal consent, and in conformity to municipal regulations, is not in itself an additional burden for which the owner of the fee is entitled to compensation. It logically follows, that unsightliness of the poles, and noises which are the ordinary incident of the lawful and nonnegligent maintenance of the poles and wires and the conduct of the business, do not constitute a special injury for which damages are recoverable. In neither of these particulars is there a substantial and meritorious distinction between the construction
But the cases above cited, as well as others, recognize this qualification as to elevated structures, that appreciable interference with light, air, access or drainage is an additional burden to which the land of the abutting owner cannot be subjected without rendering to him just compensation. The principle is thus stated in the ease last cited: “ The permission of the municipality to cross or enter upon one of its streets, whether upon the surface or above or below it, is an authority to the grantee to enter within the limits affected by the public easement and in subordination to it. The grantee may lawfully enter under this permission, but his rights are subject to the same limitations that have been already pointed out. He must impose no new servitude upon the land. If he does he takes not only what the municipalitj'- had to grant, but he takes from the owner in addition. In such case, as we have seen by the cases already cited, the owner is entitled to compensation for the new servitude to which he is subjected.” See also Duncan v. Penna. R. R. Co., 111 Pa. 354; Penna. Schuylkill V. R. R. Co. v. Walsh, 124 Pa. 544; Penna. Schuylkill V. R. R. Co. v. Ziemer, 124 Pa. 560.
The affirmation of the defendant’s points, without accompanying with it the qualification last mentioned, might have been misunderstood by the jury as implying more than was intended by them; therefore the first and second assignments are not sustained. Neither is the third, because, as heretofore shown, there was evidence that the pole is a special injury, in that it interferes with light and access. But we think there was error in the instructions, which are the subject of the fourth assignment, in permitting a recovery by reason of noises, and also in the instructions quoted in the fifth assignment, in that the ef- ’ feet of them was to permit a recovery upon the ground that the pole is an unsightly object. So far as the fourth assign
The decisions of the courts outside of this commonwealth upon the main question are not in harmony, and it would unduly prolong this opinion to attempt to review them. They will be found collected in McCann v. Johnson County Telephone Co., 66 L. R. A. 171, decided in 1904.
Judgment reversed and venire facias de novo awarded.