Cater v. Nw. Tel. Exch. Co.

• Decision Date: 30 April 1895
• Citation: 60 Minn. 539,63 N.W. 111
• Parties: CATER v. NORTHWESTERN TEL. EXCH. CO.
• Court: Minnesota Supreme Court

60 Minn. 539

63 N.W. 111

CATER

v.NORTHWESTERN TEL. EXCH. CO.

Supreme Court of Minnesota.

April 30, 1895.

(Syllabus by the Court.)

The defendant, under legislative authority (Gen. St. 1894, § 2641), constructed along the side of a country highway (the fee of which was in plaintiff) a telephone line, consisting of poles planted in the ground upon which wires were strung. It did not interfere with the safety and convenience of ordinary travel, or unreasonably or materially impair plaintiff's special easements in the highway as owner of the abutting land. Held, that it did not impose an additional servitude upon the highway.

Start, C. J., and Buck, J., dissenting.

Appeal from district court, Sherburne county; L. L. Baxter, Judge.

Action by Joshua O. Cater against the Northwestern Telephone Exchange Company to compel defendant to remove poles and wires from a highway. Defendant had judgment, and plaintiff appeals. Affirmed.

Oscar Taylor and Bruckhart & Brower, for appellant.

Hale & Morgan, for respondent.

MITCHELL, J.

The defendant is a domestic corporation authorized to erect and maintain telephone exchanges and lines. It has constructed a telephone line between the cities of Minneapolis and St. Cloud, a part of which is on and along the side of a rural highway, the fee of which, subject to the public easement, is in the plaintiff, who is the owner of the abutting land. It was built without his consent and against his protest. It consists of poles planted in the soil at a distance of 170 feet from each other, upon which wires are stretched. The defendant claims the right to construct and maintain this line solely by virtue of Gen. St. 1894, § 2641.¹ This action was brought to compel the defendant to remove its poles and wires from the highway. It is not claimed that the line is not constructed in strict accordance with the requirements of the statute. Neither did the plaintiff either allege or prove that it has caused any substantial pecuniary damage or injury to himself or his property. He plants himself squarely upon the proposition that the erection and maintenance of telephone poles and wires is not within the public easement in a highway, but constitutes the imposition of an additional servitude upon his land; and that is the question presented by this appeal. The question is res integra in this state, and the decisions upon it, as well as upon the kindred one as to telegraph lines, in other states, are conflicting. Hence we feel at liberty to decide the question entirely upon principle.

From the manner in which the case has been discussed by counsel, we assume that defendant's telephone line is for the use of the public upon payment of certain charges. Therefore, the use to which the highway has been appropriated by the defendant is a public one. The transmission of intelligence by telegraph or telephone is a business of a public character, to be conducted under public control, in the same manner as the transportation of persons or property by common carriers. But, of course, the fact that this is a public use gives the legislature no right to authorize the taking of private property for it without paying compensation. The proposition is equally elementary that the acquisition by the public of one easement in land gives no right to another and different easement. The public cannot go beyond, but must be confined within, the general purpose for which the easement was granted or acquired from the owner of the soil. Hence whether an easement authorizes the use of land in a particular way depends upon the nature and extent of the easement. These propositions are so nearly axiomatic that they will not be disputed by any one. The question, then, is, what is the nature and extent of the public easement in a highway? If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals; and, next, a way for vehicles drawn by animals,-constituting, respectively, the iter, the actus, and the via of the Romans. And thus the methods of using public highways expanded with the growth of civilization, until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired, and are more onerous to him than those then in use. Another proposition, which we believe to be sound, is that the public easement in a highway is not limited to travel or transportation of persons or property in movable vehicles. This is, doubtless, the principal and most necessary use of highways, and in a less advanced state of society was the only known use, as the etymology of the word “way” indicates. And the courts, which, as a rule, are exceedingly conservative in following old definitions, have often seemed inclined to adhere to this original conception of the purpose of a highway, and to exclude every form of use that does not strictly come within it. But it is now universally conceded that urban highways may be used for constructing sewers and laying pipes for the transmission of gas, water, and the like for public use. Some courts put this on the ground that these uses are merely incidental to and in aid of travel on the streets. Other courts put it on the ground that such uses are contemplated when the easement in urban ways is acquired, but not in the case of rural highways. But it seems to us that neither of these reasons is either correct or satisfactory. The uses referred to of urban streets are not in aid of travel, but are themselves independent and primary uses, although all within the general purpose for which highways are designed. Neither can a distinction between urban and rural ways be sustained on the ground that such uses were contemplated when the public easement was acquired in the former but not when the easement was acquired in the latter. As a matter of fact, most of these uses were unknown when the public easement was acquired in many of the streets in the older cities. Indeed, many of what are now urban highways were merely country roads when the public acquired its easement in them, and doubtless many highways that are now merely country roads will in time become urban streets. When such changes occur, will the abutting owners be entitled to new compensation before the public can build sewers or lay water or gas pipes in these streets?

It seems to us that a limitation of the public easement in highways to travel and the transportation of persons and property in movable vehicles is too narrow. In our judgment, public highways, whether urban or rural, are designed as avenues of communication; and, if the original conception of a highway was limited to travel and transportation of property in movable vehicles, it was because these were the only modes of communication then known; that as civilization advanced, and new and improved methods of communication and transportation were developed, these are all in aid of and within the general purpose for which highways are designed. Whether it be travel, the transportation of persons and property, or the transmission of intelligence, and whether accomplished by old methods or by new ones, they are all included within the public “highway easement,” and impose no additional servitude on the land, provided they are not inconsistent with the reasonably safe and practical use of the highway in other and usual and necessary modes, and provided they do not unreasonably impair the special easements of abutting owners in the street for purposes of access, light, and air. It is impracticable, as well as dangerous, to attempt to lay down, except in this general form, any rule or test of universal application as to what is or what is not a legitimate “street or highway use.” Courts have often attempted to do so, but have always been compelled by the logic of events to shift their ground. The only safe way is to keep in mind the general purpose of highways, and adopt a gradual process of inclusion and exclusion as cases arise. This court has held, in common with the great majority of courts, that an ordinary commercial railroad imposes an additional servitude on a street, and we applied a test as to what did and did not constitute an additional servitude. As far as it went, and as applied to such a case, the test was doubtless correct; but, after all, the bottom fact upon which the decision really rests was that such an appropriation of a street was practically subversive of its use by the public in the ordinary way, and also unreasonably impaired the special easements of abutting owners. So, too, the New York elevated railway cases were discussed and reasoned at great length; but in their final analysis the real ground upon which those structures were held to impose an additional servitude was, not that they were immovable, or were above the surface of the ground, but because they unreasonably impaired the easements of abutting owners in the streets for purposes of access, light, and air. How far a particular method of using a street must interfere with other methods of its use by the public, or with the special easements of abutting owners, in order to constitute an additional servitude or amount to a...