165 F. 263 | U.S. Circuit Court for the Northern District of Georgia | 1908
This bill is brought by the Southern Bell Telephone & Telegraph Company against W. H. Nalley, seeking to enjoin the defendant from interfering with the complainant company’s line as set out in the bill. The allegations are: That during the year .1903 the Southern Bell Telephone & Telegraph Company, the complainant company here, began the construction of a long-distance line between the city of Atlanta, in the state of Georgia, and the city of Birmingham, in the state of Alabama. That in order to establish said line it was necessary to reconstruct certain old lines at points between said cities, and to extend such old lines after they were reconstructed. That a portion of said line is along the public highway upon which the lands of W. H. Nalley abuts, in the counties of Douglas and Carroll, and that said portion of its line was an old local line, which it was necessary to reconstruct, and build one more modern and substantial, in order to properly accomplish its purpose and connect the city of Atlanta and the city of Birmingham by telephone. Further, that the complainant company obtained the right to construct said line along the public highways from the proper authorities of the counties in which the defendant’s lands were located (Douglas and Carroll). That the reconstructed line was located along the old line as far as possible, and though there was to some extent a change in the relocation of its poles, yet the new line is along the line of the old one. That, in. rebuilding the line along the highway upon which defendant’s lands abutted, the height of the new poles used necessitated tlie trimming, and perhaps the cutting, of
Complainant then prays:
“That this court issue its writ of injunction, enjoining, restraining, and prohibiting said TV. H. Nalley from cutting its wires, appropriating its poles, or in any way interfering with any portion of its line, either in the county of Douglas, the county of Carroll, or elsewhere. Complainant further prays that a restraining order or a temporary injunction be issued by the court, restraining and enjoining said TV. H. Nalley from cutting its wires, appropriating its poles, or otherwise interfering with its line, whether in the county of Douglas, the county of Carroll, or elsewhere, until a hearing may be had by this court, in order that the present status may be maintained.”
To this bill a demurrer was filed upon several grounds not material here. Afterwards the demurrer was amended as follows:
“The defendant, TV. H. Nalley, by leave of the court just had and obtained, amends the general demurrer heretofore filed by him in the cause, and moves to dismiss the bill of complaint upon this additional ground of demurrer, to wit: Complainant has no right to maintain upon the public highway with the*265 approval of Hie county authorities its telephone line, as such telephone lino constitutes an additional burden upon the highway and exceeds the uses to which the easement of the public iu said highway can lie put; and defendant, as adjacent landowner and as owner of the fee, lias the legal right to terminate the occupancy by complainant of the portion of the highway adjacent to his premises.”
After argument the demurrer was overruled, and the following order passed;
“The amended demurrer of the defendant, which was allowed by the court on lire (iih day of November. 1908, has been considered. The court being of the opinion that the construction of a telephone line upon a public county road or highway in the state of Georgia, with the approval of the county authorities in charge of such road or highway (which telephone line is used in the transmission of intelligence between various points), is not an additional burden or servitude upon such public road, and does not exceed the uses to which the easement; in the public can ho put by approval of such county authorities, and that the adjacent or abuttftig laudownor upon such public road has not the legal right to prevent the use and occupancy by the complainant of such public road for the purpose of constructing, maintaining, and operating its telephone lines thereon with the approval of such county authorities, it is therefore ordered that the original demurrer and amended demurrer of the defendant be and the same are hereby overruled.”