Alt v. State

• Decision Date: 09 January 1911
• Docket Number: 16,767
• Citation: 129 N.W. 432,88 Neb. 259
• Parties: JOHN ALT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

129 N.W. 432

88 Neb. 259

JOHN ALT v. STATE OF NEBRASKA

No. 16,767

Supreme Court of Nebraska

January 9, 1911

ERROR to the district court for Hall county: JAMES R. HANNA, JUDGE. Affirmed.

AFFIRMED.

J. E Kelby and O. A. Abbott, for plaintiff in error.

William T. Thompson, Attorney General, George W. Ayres, J. L. Cleary and Bayard H. Paine, contra.

ROSE J. SEDGWICK, J., concurs in the conclusion.

OPINION

ROSE, J.

On a section-line highway running north and south between Grand Island and the Soldiers' Home, John Alt, defendant, cut the York County Telephone Company's toll-wires March 7, 1910, where they cross the right of way and track of the Chicago, Burlington & Quincy Railroad Company. Under the charge that he was guilty of the offense described, he was convicted and sentenced to pay a fine of $ 50. As plaintiff in error, defendant now presents for review the record of his conviction.

The statute which defendant was convicted of violating provides: "That any telegraph or telephone company incorporated or doing business in this state shall be and is hereby granted the right of way along any of the public roads of the state for the erection of poles and wires; provided, that poles shall be set at least six feet within the boundary line of said roadway and not placed so as to interfere with road crossings; and provided, that said wires shall be placed at the height of not less than twenty feet above all road crossings." Comp. St. 1909, ch. 89a, sec. 14.

"Any person or persons who shall break, injure, destroy, or otherwise interfere with the poles, wires, or fixtures of any telegraph or telephone company in this state shall be subject to action and penalty prescribed in section 98, chapter 13, criminal code." Comp. St. 1909, ch. 89a, sec. 15.

Defendant did not attempt to controvert proof of these facts: Assuming to act under authority of the statute quoted, the York County Telephone Company in September, 1909, erected its poles along the highway. Six telephone wires were strung on the poles in December, 1909, and thereafter were used for long-distance service, but they had been cut at the railroad crossing a number of times before defendant was arrested. Early in the morning, March 7, 1910, Charles J. Palmer, an agent of the telephone company, hid behind a big signboard and watched the crossing. Pretty soon a section gang came up the railroad on a hand-car and stopped. A little later a bridge gang of which defendant was a member arrived in the same manner, but before any overt act had been committed Palmer accosted them and a conversation in regard to the wires ensued. At that time the wires crossing the railroad track were supported by two 45-foot poles, one being north of the track and the other south of it. The poles were 115 feet apart. One was seven feet and the other eight feet outside of the railroad right of way. Both were six feet within the boundary line of the highway. The wires were 30 feet above the rails at the crossing and were in good condition. There was nothing about either the poles or the wires to interfere with the passage of trains or with a man on a box car. That the wires in no way disturbed railroad traffic or endangered employees is further evidenced by the fact that an attorney for the railroad company, in testifying on behalf of defendant to the civil nature of the controversy, said that had a suit been brought to enjoin the cutting of the wires they would have been allowed to remain without a temporary injunction until the termination of the suit. With the poles and the wires in the situation and condition indicated by this undisputed proof, the conversation to which reference has been made took place. According to the testimony of Palmer, the sum of what was then said and done is: The section foreman said he "couldn't see any reason why the Burlington wanted the wires cut." Defendant, who was an employee of the railroad company, asked if he should cut the wires, and the section foreman suggested: "You came out here to cut them?" Defendant answered "Yes," and was told: "Do as you please." Palmer warned defendant he had better not do it, and said in his presence he would be arrested if he did. Afterward defendant climbed a pole, cut one of the wires at a place outside of the railroad right of way, and was told by Palmer to cut no more, but immediately cut the others.

Correspondence between the respective counsel for the two companies and oral proof were adduced by defendant to show that in the cutting of the wires he acted under the direction of his employer; that the direction was given in the assertion of a legal right to prevent the telephone company from running its wires across the right of way without permission of the railroad company, and that defendant acted without the malice essential to the commission of a crime.

Defendant argues that the conviction should be reversed because the court gave an instruction containing a copy of the statute violated. It is proper to describe an offense in the language of the statute. Long v. State, 23 Neb. 33, 36 N.W. 310. To quote from the statute under which defendant is being prosecuted is not necessarily erroneous. Mills v. State, 53 Neb. 263, 73 N.W. 761. Defendant does not question these principles, but insists that the trial court, in quoting without explanation the statute which authorizes telephone companies to use the highways for poles and wires, deprived him of the benefit of another statute prohibiting such companies from crossing the right of way of a railroad company without its permission. That act, among other things, provides: "That all persons, associations, and corporations engaged in the generating and transmitting of electric current for sale in this state for power or other purposes, are hereby granted the right of way for all necessary poles and wires along, within, and across any of the public highways of this state." Comp. St. 1909, ch. 26a, sec. 1. Provision is also made for suspending such wires across railroad tracks and for fining those who do so in violation of the terms of the statute. In the present case the evidence shows that the York County Telephone Company's wires which crossed the railroad right of way were used alone for long-distance telephone service, and not for the purposes described in the statute. It is apparent from the entire act that it does not apply to telephone lines constructed and used exclusively for such a purpose, and that it affords no justification for the conduct of defendant in cutting the wires.

Further complaint is: The instruction was given without qualification and left the jury to infer that the telephone company had acquired an absolute right to the use of the highway without regard to the following considerations: The railroad company owns the fee to the land at the crossing. The public has a mere easement for highway purposes. The wires subject the railroad right of way to an additional burden. The telephone company has no right to cross the track without permission. When permission is given, the railroad company is entitled to compensation. Overhead wires are dangerous. The wires should be laid in a conduit under the track. The burden of keeping the crossing in a safe condition for travel is on the railroad company. Conceding all these propositions for the purpose of the argument, but for no other purpose, did defendant have a lawful right to cut the wires, when directed by his employer to do so? A text-writer says: "A telephone wire stretched over the property of another without authority, but causing no obstruction, is not a nuisance which may be summarily abated by cutting the wire." McMillan, Telephone Law, sec. 88.

Reasons for applying this doctrine to the present case are obvious. The state, in the proper exercise of its power to control public highways, may authorize a telephone company to use them for its poles and wires. 1 Joyce, Electric Law (2d ed.) sec. 143. The legislature exercised that power, and it was under the legislative grant that the telephone company acted in constructing its lines. It was a common carrier of intelligence and news. State v. Nebraska Telephone Co., 17 Neb. 126, 22 N.W. 237; Nebraska Telephone Co. v. State, 55 Neb. 627, 76 N.W. 171. It was devoting its property to a public use when its wires were cut. City of Plattsmouth...