American Telephone & Telegraph Co. v. Morgan County Telephone Co.

• Decision Date: 12 November 1903
• Citation: 138 Ala. 597,36 So. 178
• Court: Alabama Supreme Court
• Parties: AMERICAN TELEPHONE & TELEGRAPH CO. OF ALABAMA v. MORGAN COUNTY TELEPHONE CO.

36 So. 178

138 Ala. 597

AMERICAN TELEPHONE & TELEGRAPH CO. OF ALABAMA v. MORGAN COUNTY TELEPHONE CO.

Supreme Court of Alabama

November 12, 1903 ^[a1]

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Bill for injunction by the American Telephone & Telegraph Company of Alabama against the Morgan County Telephone Company. From a decree for defendant entered on sustaining a demurrer to the bill, complainant appeals. Affirmed.

The bill alleges that the American Company was a duly organized and incorporated company, and that the Morgan Company is acting as a corporation, located in the town of New Decatur Ala.; that on June 7, 1898, the mayor and aldermen of said town granted to the American Company a franchise to construct, operate and maintain lines of telegraph and telephones along and under the highways of said town including the necessary poles, wires, cross-arms and fixtures for that purpose, which was to be done under the instruction and supervision of the street committee of said town, and that shortly thereafter, the complainant under the direction and supervision of said committee, erected its poles, wires and fixtures for carrying on its business, along the south side of Moulton street in said city, and on and along other streets in said town, and has maintained and operated the same up to the time of filing the present bill.

It is averred, that the defendant, the Morgan Company, is proceeding, without the consent of the complainant, to dig holes, along the south side of Moulton street, between the poles of complainant, preparatory to stringing wires thereon for the purpose of erecting and carrying on telephone business in said town, which it is alleged will be greatly injurious to the telegraph and telephone business of complainant, etc., and the bill sought an injunction against the defendant company, restraining it from the erection and operation by it of its said telephone business. A temporary injunction was granted by the judge of the circuit court of Morgan county, according to the prayer of the bill, on complainant first entering into bond in the sum of $1,000, payable to the defendant. Upon the execution of the prescribed bond, the writ of injunction was duly issued and served.

On the 5th day of December, 1902, the defendant filed an answer under oath, denying the main allegations of the bill, and at the same time filed a demurrer to the bill and made its motion to dissolve the injunction theretofore granted for want of equity in the bill and to discharge the same. The motion was set down for hearing on the 15th of December, at which time the defendant gave notice to complainant that it would offer in support of its answer a certified copy of the minutes of the proceedings of the board of aldermen of said town, relating to the granting of the franchise of complainant, and the affidavits of several persons whose names were given.

On the 17th of that month, the chancellor, after hearing the cause, upon due and legal notice therefor, and the appearance and argument of the cause by counsel, refused to discharge the injunction for alleged irregularities, but found--to quote the language of the opinion--"that the complainant and the defendant have franchise rights in the city of New Decatur as set forth in the pleadings; that said rights appear to be of equal validity, and the complainant can assert and maintain no vested rights by reason of prior occupancy of the streets, to the exclusive use and enjoyment thereof, as against the defendant and the rights asserted by it; that the defendant by its answer and affidavits in support thereof, has fully controverted the material allegations of the bill, showing clearly that defendant is making careful use of the franchise granted to it by the city of New Decatur, and that the manner in which it proposes to erect the poles and construct its wires will not injuriously affect the rights of complainant and cause it irreparable damage; that if any damage results therefrom, it will be merely incidental and damnum absque injuria, and will not authorize injunctive interference by a court of chancery; that the denials of the answer are sufficient to authorize the dissolution of the injunction, and that the bill is without equity." Accordingly the demurrer to the bill was sustained and the injunction was dissolved in accordance with the opinion of the chancellor. From this decree the complainant appeals, and assigns the rendition thereof as error.

Callahan & Harris, for appellant.

Blackwell & Fite and E. W. Godbey, for appellee.

HARALSON J.

The contention on the part of the complainant is, that without its consent, the defendant has no right to erect its poles on Moulton or other streets in the city of New Decatur, between the poles of complainant, and to string its wires on or near the top of these poles, above the wires of complainant, in the manner set forth in its bill; while that of the defendant is, conceding an equal right to the complainant with itself, to the use of the streets of said city for its telephone or telegraph purposes,--that complainant has no right to said streets superior to the right of defendant to erect, maintain and operate its telephone system, so long as defendant does not, in some serious and permanently injurious manner, interfere with the complainant's rights.

It is shown, that both companies are occupying parts of the street in said city, with the permission and under the direction of the city authorities, duly invested with authority to this end, and under their regulation and control. The rights of each are equal and not superior to the rights of the other,--the principles being well settled, that no company can, under ordinary circumstances, assert and maintain a right to the exclusive enjoyment of a public street in a city. "Monopolies are not favorites in the law, and if a street has sufficient width and capacity to admit of more than one public enterprise, without unduly obstructing it as a public highway, an exclusive right should not be granted to one company, and if granted, except under peculiar circumstances, it may and should be revoked." Consolidated Electric Light Co. v. People's Electric Light & Gas Co., 94 Ala. 374, 10 So. 440. As was said by us in another and similar connection: "It may be safely stated, as applicable to all conditions, that no one public corporation of the kind should be given a monopoly to the exclusion of others in the use of the streets of a city. Ordinarily, such privileges...