American Tel. & Tel. Co. of Massachusetts v. McDonald

• Decision Date: 28 November 1930
• Citation: 273 Mass. 324,173 N.E. 502
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: AMERICAN TELEPHONE & TELEGRAPH CO. OF MASSACHUSETTS v. McDONALD et al.

273 Mass. 324

173 N.E. 502

AMERICAN TELEPHONE & TELEGRAPH CO. OF MASSACHUSETTS

v.McDONALD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 28, 1930.

Appeal from Superior Court, Hampden County; Edward T. Broadhurst, Judge.

Suit by the American Telephone & Telegraph Company of Massachusetts against William F. McDonald and others. Decree for plaintiff, and defendants appeal.

Affirmed.

J. S. Kane, of Springfield, for appellants.

C. H. Beckwith, of Springfield, for appellee.

WAIT, J.

This is an appeal from a decree of the Superior Court which enjoins the defendants perpetually from interfering with the plaintiff's maintenance and enjoyment of a toll cable hung from poles on a strip of land of the defendants; from injuring, removing or destroying the poles to which the cable is attached; from cutting or otherwise injuring the cable; and from interfering with the entry by servants of the plaintiff upon the strip of land for the purpose of protecting, adequately and properly, its property there from injury by the elements.

In 1913 one James P. McDonald did ‘grant, bargain, sell and convey’ to the New England Telephone and Telegraph Company, habendum to it, ‘its successors and assigns for their own use and behoof forever’ ‘the right to erect, operate and maintain lines of telephone and telegraph including the necessary poles and fixtures upon and over’ certain described premises. The conveyance was by deed, duly recorded, executed by McDonald and his wife, who joined to release any interest she had ‘in the rights and easements herein conveyed.’ The deed set out: ‘The above granted rights being more particularly described as the exclusive right to erect and maintain poles with the wires thereon with the necessary guys and supports and the right to cut down and keep trimmed all trees and bushes as the grantee may desire within a strip of land thirty (30) feet in width upon and over said described premises, the location of said strip to be determined by, and to become permanent upon, the erection of the poles in said lines of telephone and telegraph with permission to enter upon said strip and upon said premises for access thereto for all the above purposes.’ The grantee agreed to pay for all damage to crops caused by negligence of its employees while engaged in work of the company on the land.

The defendants are the present owners of the land subject to the rights thus created. The grantee put up poles, strung wires upon them and hung a cable from a wire supported by cross arms, to form a part of its toll route between Springfield and Worcester. In 1928, it granted by instrument under seal, to the American Telephone and Telegraph Company of Massachusetts, the plaintiff here, ‘the right to erect, operate and maintain a telephone toll cable with the necessary fixtures, upon all the poles of the grantor located on private...