Abbott v. City of Duluth

• Decision Date: 15 November 1900
• Citation: 104 F. 833
• Parties: ABBOTT et al. v. CITY OF DULUTH.
• Court: U.S. District Court — District of Minnesota

104 F. 833

ABBOTT et al. v. CITY OF DULUTH.

United States Circuit Court, D. Minnesota, Fifth Division.

November 15, 1900

Billson Congdon & Dickinson, for plaintiffs.

Oscar Mitchell, for defendant.

LOCHREN District Judge.

Final hearing of this suit was had on October 25, 1900, upon the bill, answer, replication, and evidence. It appears that the Duluth Telephone Company is a corporation of the state of Minnesota, organized and doing business as a telephone company, under the provisions of title 1 of chapter 34 of the General Statutes of 1878 of that state, and under articles of incorporation duly adopted, signed, and executed in February 1881, and then filed in the offices of the secretary of state of said state and of the register of deeds of St. Louis county, in said state, in which articles the general nature of its business was described and defined as follows 'The erection, maintenance and operation of a system of telegraph or telephone lines and a telephone exchange in Duluth, in the state of Minnesota. ' In January, 1882 and after the enactment by the legislature of the state of Minnesota of the special act entitled 'An act to authorize the erection, maintenance and protection of telephone poles and wires upon and over the streets, avenues and alleys of the city, village and town of Duluth,' approved March 7, 1881, and of chapter 73 of the General Laws of Minnesota of the year 1881, approved on the same day, which amended chapter 34 of the said General Statutes of 1878, and in reliance upon the provisions of said two enactments, the said Duluth Telephone Company proceeded to construct its telephone plant, and to transact and carry on the business described and defined in its articles of incorporation and in said special act; and has ever since, in its corporate name, been actively engaged in the construction, operation, repair, and renewal of its telephone system, and in the acquisition of property incident thereto, and in the performance of contracts and transaction of a general telephone business, and is operating in said city of Duluth, and mainly upon its highways, a telephone exchange system embracing many miles of wire supported upon poles planted just inside the curb line of sidewalks in the customary manner, and connected with its many hundreds of telephone instruments; and as a part of the same system has and operates many other miles of wire similarly supported on poles connecting said telephone system in Duluth with the city of Superior, in Wisconsin, and the villages of Proctor Knott, Cloquet, and Carlton, in Minnesota; and the said Duluth Telephone Company has expended on the construction of said telephone plant many thousands of dollars, and the same has become and is a property of great value. The said special act of March 7, 1881, which by its terms granted to the Duluth Telephone Company the exclusive right to erect, use, and maintain upon and over the streets, avenues, and alleys of the city, village, and town of Duluth telephone wire and poles for the period of 10 years, was duly accepted by said company; and the said legislature, by the terms of chapter 254 of the Special Laws of Minnesota of the year 1889, extended its provisions to apply to and cover the territory then included in the corporate limits of the city and town of Duluth and the village of West Duluth as the same was then or might thereafter be established, continuing the rights granted until March 8, 1899. All the allegations of said bill relative to the execution and delivery by said Duluth Telephone Company to the complainants, as trustees, of the mortgage or deed of trust of January 2, 1900, and as to its purport, and to the recording of the same, and as to the bonds secured thereby, the amount of such bonds outstanding, and by whom held and owned, are true as stated in said bill. The defendant city of Duluth, and the village of Duluth as existing in the year 1881, were severally municipalities organized and existing as is stated in defendant's answer, and having the powers of control in respect to highways, streets, sidewalks, alleys, and public grounds set forth in said answer; and the Duluth Telephone Company has not received from either of those municipalities any special authority to place its poles or suspend its wires upon or along any highway, street, alley, or public grounds in said city or village. But, acting upon the assumption that said Duluth Telephone Company had lawful authority and right to so place its poles and wires, all such poles and wires have been so placed under the direction and supervision of the proper officials of said city and village respectively. The ordinance entitled 'An ordinance providing for the sale by the city of Duluth of a franchise for the said city, for the establishment and operation of a telephone exchange system in the said city, from and after March 9th, 1899, and for the receiving of bids and terms for the same,' a copy of which is annexed as 'Exhibit A' to said answer, was passed by the common council of said city November 29, 1898, and approved by the mayor on the day next following, as is stated in said answer; and all the allegations of said answer relative to the desire of aldermen and officers of the defendant city that said Duluth Telephone Company should, in compliance with the terms of said ordinance, submit a proposition for a franchise enabling it to continue to do business as a telephone company within said city, and the refusal of said company to consider such proposition, and insisting that it had a legal right to occupy the streets, avenues, and alleys of said city without the consent of the city, and the writing by its vice president of the letter, a copy of which, marked 'Exhibit B,' is attached to said answer, are all true as stated in said answer. Also all the allegations of said answer relative to the bid received by said city from R. H. Evans, and the passage of the ordinance 'Exhibit C,' and its acceptance by said Evans, and compliance therewith by said Evans and his assign, and the completion by such assign of a telephone plant in all respects as provided in such ordinance, which plant is in full and complete operation within said city of Duluth, are true as stated in said answer. The assign of said Evans now owning said new plant is known as the Zenith City Telephone Company. All the allegations of said bill relative to the threats by the common council, mayor, and other officers of said city, and their intention to cut down and remove from the highways of said city the telephone poles and wires of said Duluth Telephone Company, and obstruct said company in the use and operation of its said system and plant, and interfere and prohibit repairs, renewals, and extensions thereof, and to wholly exclude said company from the use of the highways of said city, and of any easements or rights therein, are true as stated in said bill. The formal resolution passed by said common council, and served upon the Duluth Telephone Company, is admitted by the answer to have been passed by the said common council on February 13, 1900, after the...