Butler v. Frontier Telephone Co.

• Decision Date: 21 December 1906
• Citation: Butler v. Frontier Tel. Co., 186 N.Y. 486, 79 N.E. 716 (N.Y. 1906)
• Court: New York Court of Appeals Court of Appeals
• Parties: ERNEST P. BUTLER, Respondent, v. THE FRONTIER TELEPHONE COMPANY, Appellant.

186 N.Y. 486

79 N.E. 716

BUTLER

v.FRONTIER TELEPHONE CO.

Court of Appeals of New York.

Dec. 21, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Ernest P. Butler against the Frontier Telephone Company.From a judgment for plaintiff, affirmed by the Appellate Division(95 N. Y. Supp. 684,109 App. Div. 217), defendant appeals.Affirmed.

This is an action of ejectment, which was tried by consent before the court without a jury.The trial judge found as facts that ‘the defendant on or about January 1, 1903, without the consent of the plaintiff and without lawful authority, entered upon’ his premises in the city of Buffalo‘and stretched a wire over and across the same in the manner described in the complaint and maintained said wire upon said premises until January 10, 1903, when the defendant removed the said wire entirely from plaintiff's said premises.’According to the allegations of the complaint the wire was strung ‘about 30 feet from the surface of the ground on the easterly side and slanting to about 20 feet on the westerly side,’ reaching ‘across the entire width of said premises.’The trial judge further found that ‘the plaintiff has been in possession of the premises described in the complaint at all times mentioned therein and since, except that portion thereof occupied by the defendant with said wire during the period specified.’The damages sustained by the plaintiff were assessed at six cents for ‘the withholding by the defendant of that portion of the premises occupied by said wire for the period above specified.’There was neither allegation nor evidence that the wire was supported by any structure standing upon the plaintiff's lot.The action was commenced on the 5th of January, 1903.The court found as a conclusion of law that the plaintiff, as the owner in fee of the premises in question, ‘was entitled at the commencement of this action to have said wire removed from said premises, and is entitled to judgment against the defendant so declaring, and for six cents damages for withholding said property and for the costs of this action. * * *’ The judgment entered accordingly was affirmed on appeal to the Appellate Division by a divided vote, and the defendant now comes here.Lyman M. Bass, for appellant.

George C. Hillman, for respondent.

VANN, J.(after stating the facts).

The question presented by this appeal is whether ejectment will lie when the soil is not touched, but part of the space a few feet above the soil is occupied by a telephone wire unlawfully strung by the defendant across the plaintiff's premises?This question has never been passed upon by the Court of Appeals, nor by the Supreme Court, except in the decision now before us for review.Questions similar, but not identical, as they related to overhanging eaves, projecting cornices, or leaning walls, were decided in favor of the defendant in Aiken v. Benedict, 39 Barb. 400, andVrooman v. Jackson, 6 Hun, 326, and in favor of the plaintiff in Sherry v. Frecking, 4 Duer, 452.In Leprell v. Kleinschmidt, 112 N. Y. 364, 19 N. E. 812, the question as to the effect of projecting eaves was alluded to, but not decided, because there was in that case‘a physical entry by the defendant upon the land of the plaintiffs and an unlawful detention of its possession from them.’

The precise question before us does not appear to have been passed upon in any other state, and upon the cognate question relating to projecting cornices and the like the authorities are divided.Some hold that ejectment will lie because there is an actual ouster or disseisin.Murphy v. Bolger, 60 Vt. 723, 15 Atl. 365,1 L. R. A. 309;McCourt v. Eckstein, 22 Wis. 153, 94 Am. Dec. 594;Stedman v. Smith, 92 Eng. C. L. 1.Others hold that there is not such a disturbance of possession as to sustain an action in that form.Norwalk H. & L. Co. v. Vernon, 75 Conn. 662, 55 Atl. 168,96 Am. St. Rep. 246;Rasch v. Noth, 99 Wis. 285, 74 N. W. 820,40 L. R. A. 577, 67 Am. St. Rep. 858.The case last cited does not overrule the earlier case in Wisconsin, but proceeds upon the theory that the aerial space was occupied by the projecting eaves of both parties, one above the other, on opposite sides of the boundary line.Some of the cases hold that a court of equity may order the removal of a projection without deciding whether ejectment will lie or not.Thus, in Wilmarth v. Woodcock, 58 Mich. 482, 485, 25 N. W. 475, it was decided that equity would require the removal of a projecting cornice, because ‘no remedy at law is adequate, owing to the uncertainty of the measure of damages, to afford complete compensation.’But, as the learned court continued; ‘No person can be permitted to reach out and appropriate the property of another, and secure to himself the adverse enjoyment and use thereof, which, in a few years, will ripen into an absolute ownership by adverse possession.’See, also, Plummer v. Gloversville Electric Co., 20 App. Div. 527,47 N. Y. Supp. 228.

While some of the cases may be harmonized by resort to the distinction between ‘disseisins in spite of the owner and disseisins at his election,’ the main question is open, and must be determined upon principle.The defendant concedes that the plaintiff has a remedy, but insists that it is an action for trespass, or to abate a nuisance, while the plaintiff claims that ejectment is a proper remedy and one of especial value, as it entitles him, if he needs it, to a second trial as a matter of right and to costs, even if he recovers less than $50 damages.Code Civ. Proc. §§ 1525,3228.

An action of ejectment, according to the Code, is ‘an action to recover the immediate possession of real property.’Code Civ. Proc. § 3343, subd. 20.While the statute to some extent regulates the procedure, it did not create the action, and for the principles which govern it resort must be had to the common law.Code Civ. Proc. §§ 1496 to 1532;Real Property Law,Laws 1896, pp. 560, 594, c. 547, §§ 1, 218;Rev. St.(2d Ed.) p. 303, pt. 3, c. 5, tit. 1, § 3.Without entering into the somewhat involved and perplexing learning upon the subject, it is sufficient to say that, as all the authorities agree, the plaintiff must show that he was formerly in possession, that he was ousted or deprived of possession, and that he has a right to re-enter and take possession.It is admitted by the pleadings that when the wire was put up the plaintiff was in possession of the entire premises, and that he was entitled to the immediate possession thereof as owner when the action was commenced.The serious question is whether he was deprived of possession to the extent necessary to authorize ejectment.While ouster is essential to the maintenance of the action, it need not be entire or absolute; for it is sufficient if the defendant is in partial possession of the premises while the plaintiff is in possession of the remainder.Sullivan v. Legraves, 2 Str.Cases, 695;Doe v. Burt, 1 T. R. 701;Lady D'Acres Case, 1 Lev. 58;Rowan v. Kelsey, 18 Barb. 484;Otis v. Smith, 26 Mass. 293;Gilliam v. Bird, 30 N. C. 280, 49 Am. Dec. 379;Reynolds v. Cook, 83 Va. 817, 3 S. E. 710,5 Am. St. Rep. 317;McDowell v. King, 4 Dana (Ky.) 67; Adams on Ejectment, 27; Newell on...