142 Ill. App. 183 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The Interstate Telephone and Telegraph Company is the only appellee who has appeared in this court and will hereinafter be the only appellee referred to. The appellee has not made any motion to dismiss this appeal for want of jurisdiction in this court, but has presented the question whether or not a freehold is involved in his controversy. If a freehold is involved this court has no jurisdiction to pass upon the merits of the case.
It is conceded by all parties that appellee is the owner of substantially all the right of way and telephone poles involved in this suit, and the appellant claims a right to have its cross-arms, wires and other fixtures attached to the poles on the right of way owned by the appellee. This claim is based upon an oral contract for an exchange of similar privileges given to appellee on the poles and right of way of appellant. The poles of a telephone or telegraph line are real property, except for the purpose of taxation, or where they preserve the character of personal property by contract between the parties. Shelbyville Water Co. v. People, 140 Ill. 545; Union Trust Co. v. Weber, 96 Ill. 346; 27 Am. & Eng. Encyc. of Law (2nd ed.) 1004; Cook on Corporations, Vol. III, Art. 941; Consolidated Gas Co. v. Mayor of Baltimore, 1 L. R. A. (N. S.) 263; Western Union Tel. Co. v. Penn. Co., 129 Fed. R. 867, note in 66 L. R. A. 56; Western Union Tel. Co. v. Burlington, etc., 11 Fed. B. 1. The right under the contract claimed by appellant to occupy permanently the poles of appellee by permanently attaching wires thereto, is in the nature of an easement. Western Union Tel. Co. v. Penn Co., 129 Fed. R. 867; American Tel. Co. v. Middleton, 80 N. Y. 408.
It was held in Lucan v. Cadwallader, 114 Ill. 285, and in Eckart v. Irons, id. 469, that a claim of an easement in the lands of another does not constitute a freehold in such lands. The rule laid down in these eases was modified in Chaplin v. Commissioners of Highways, 126 Ill. 264, so that the rule now is “a perpetual easement in lands, or any interest in lands in the nature of such easement, when created by grant, or by any proceeding in law equivalent to a grant constitute a freehold.”
“The term grant was anciently and in strictness of usage applied to denote the conveyance of incorporeal rights and is the appropriate word for that purpose. Such rights are said to be in grant and not in livery; for, existing only in idea, in contemplation of law they cannot be transferred by livery of possession. Of course, at common law, a conveyance in writing was necessary, hence they are said to lie in grant, and to pass by delivery of the deed.” Bouvier’s Law Dictionary, 900.
The word “freehold” in the statute relating to appeals and writs of error is used in the sense as defined by the common law. It does not include a mere right to do that which in equity will entitle a party to a freehold. Kirchoff v. Union Mut. Life Ins. Co., 128 Ill. 199. The relation between the parties is only that of licensees mutually to use the poles of each other for stringing wires which are to remain the property of the party putting up the wires. After the lapse of twenty years of uninterrupted enjoyment of such use, under a claim of right, a presumption of a grant might arise. We conclude that the claim of appellant, not being founded on a grant or any proceeding equivalent to a grant, although it partakes of the nature of an easement, does not involve a freehold, and that this court has jurisdiction.
The meritorious question presented relates to the equities which the complainant, appellant, is seeking to enforce against appellee, the Interstate Independent Telephone and Telegraph Company. Appellant does not claim that the appellee was about to interfere with any line owned and constructed by appellant, except on the mile line on the south side of section thirty-one, in Otter Creek Township, in La Salle county. All the other lines which appellee threatens to interfere with are lines of appellant placed upon appellee’s poles on appellee’s own right of way. Concerning the south side of section thirty-one in Otter Creek Township, the affidavits show that both appellant and appellee have a right of way on the south side of that section, and that appellant first constructed its line over that mile, and then the appellee came and placed a line of heavier and higher poles over the same line without interfering with appellant’s poles or lines, and thereafter the appellant removed its lines from its own poles and placed them upon appellee’s poles and removed its own poles from its right of way. Wherever the appellee has set its poles on the right of way of appellant, having no right of way of its own, or has intermingled its poles with the poles of appellant, and the poles of both companies are used, no purpose on the part of appellee of interfering with appellant’s lines and attachments is charged.
Edward B. Conklin is president and secretary of the appellee and was also manager of the Conklin Construction Company, which constructed the telephone lines for the appellee under a contract. There was some oral arrangement made by Conklin with appellant in reference to using the poles and right of way of appellant for five miles east of Streator, and both companies over that distance have their lines on the right of way of the appellant on poles, part of which have been erected by appellee, but there is no controversy over that part of the lines. The affidavits filed by the respective parties, as to whether there was or was not a verbal agreement between Conklin and the appellant, that appellant might use the poles of the appellee south and southwest of Streator and east of appellant ’s line five miles east of Streator, leave that question in doubt, although it would be a strange circumstance if so many miles of appellee’s poles could be used for the support of appellant’s lines without the knowledge of appellee. It is very clear, however, that there is no written contract between the parties, and no action was ever taken by the board of directors of either company agreeing to or ratifying what was either done or to be done regarding the stringing of appellant’s wires on appellee’s poles. The alleged contract, if one was made, was nothing more than an oral license. It was not made between appellant and appellee, but is claimed to have been made between appellee and the Streator Independent Telephone Company whose rights and franchises the appellant has since purchased. The bill does not allege any contract with sufficient certainty that a court could enforce it. The alleged contract being oral rests in the uncertain recollection of witnesses who differ as to what the arrangement was. The time it was to run was not mentioned. There is no arrangement as to the number of arms or wires, nor any provisions for the increase of business or whose wires should be above or below, or for the replacing of poles or repairs. The prayer of the bill is that appellee be enjoined from interfering with appellant in the performance of the contract. In substance it is that a breach of the contract be enjoined. “An injunction restraining the breach of a contract is a negative specific performance of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules.” South Chicago Ry. Co. v. Calumet Ry. Co., 171 Ill. 391; Pomeroy’s Eq. Jur., Sec. 134. Specific performance will not be decreed except upon clear and explicit proof leaving no room for reasonable doubt. C. & E. I. R. R. Co. v. Chipps, 226 Ill. 584. It is not sufficient to show that a contract of some kind exists but all its terms must be satisfactorily proved. Folsom v. Harr, 218 Ill. 369; Carson v. Davis, 171 Ill. 497. The terms of the alleged contract, the breach of which is sought to be enjoined, are very indefinite and uncertain and are not proved with that degree of satisfaction that the law requires.
The agreement alleged is an indefinite and uncertain oral license to use the poles and right of way of appellee. Such an agreement is within the Statute of Frauds and not being an agreement for a conveyance cannot be enforced in equity. It makes no difference that the licensee acting upon the strength of the parol license may have expended money and made valuable improvements on the faith of the license, yet the license is revocable at the will of the licensor, when the entry was not under an agreement for a conveyance. Entwhistle v. Henke, 211 Ill. 273, same case 113 Ill. App. 572, and cases cited; Nat. Stock Yards v. Wiggins Ferry Co., 112 Ill. 384. The foregoing rule is the law in this state, and if the agreement contended for were admitted, still appellee had the right to revoke it at any time and appellant would not be entitled to the relief sought. The Circuit Court properly dissolved the temporary injunction and dismissed the bill. The decree is affirmed.
Affirmed.
