Stowers v. Postal Telegraph Cable Co.

68 Miss. 559 | Miss. | 1891

Cooper, J.,

delivered the opinion of the court.

There is some conflict in the authorities, but the decided weight is to the effect that telegraph companies form no part of the equipment of a public street, but are foreign to its use, and that where the abutting owner is the owner of the fee' to the centre of the street he is entitled to additional compensation for the additional burden placed upon his land. Lewis on Eminent Domain, § 131; citing Tel. Co. v. Barnett, 107 Ill. 507; Dusenbury v. Tel. Co., 11 Abb. Cases. 440; Tel. Co. v. Lead Co., 50 N. Y. Supr. Ct. 488; Broome v. Telegraph Co., 42 N. J. Eq. 141; contra, Hewett v. Tel. Co., 4 Mackey, 424; Pierce v. Drew, 136 Mass. 75; Building Association v. Tel. Co., 88 Mo. 258.

Though the question was not involved in the decision of the cause then before the court, Arnold, C. J., in Theobald v. L. N. O. & T. Ry. Co., 66 Miss. 279, stated, in delivering the opinion of the court, that there was no difference in right in cases where the owner of the abutting land owned the fee to the centre of the street and those in which the fee was in the public. To that declaration, and upon the authorities there cited, we now give the force of decision.

It follows that it was not competent for the city of Vicksburg, by the action of its municipal authorities, to authorize the erection of the telegraph wires by the telegraph company to the injury of appellant, without having first made compensation to him for the injury inflicted upon him. The authority granted by the municipality would protect the company in its interference with the rights of the public, which is represented by the local authorities. But it cannot operate to withdraw from the appellant his right of property and confer it upon the company. That right is secured by constitutional provision, and can only be obtained by the exercise of ■the right of eminent domain, and upon due compensation being first made.

The decree is reversed, the injunction reinstated and cause remanded..