City of Emmetsburg v. Central Iowa Tel. Co., 49661

• Decision Date: 05 May 1959
• Docket Number: No. 49661,49661
• Citation: 96 N.W.2d 445,250 Iowa 768
• Parties: CITY OF EMMETSBURG, Iowa, Appellant, v. CENTRAL IOWA TELEPHONE CO., Appellee.
• Court: Iowa Supreme Court

Page 445

96 N.W.2d 445

250 Iowa 768

CITY OF EMMETSBURG, Iowa, Appellant, v. CENTRAL IOWA TELEPHONE CO., Appellee.

No. 49661.

Supreme Court of Iowa.

May 5, 1959.

Milton W. H. Morling, Emmetsburg, and Alan Loth, Fort Dodge, for appellant.

Kelly, Spies & Culver, Emmetsburg, and Parrish, Guthrie, Colflesh & O'Brien, Des Moines, for appellee.

THOMPSON, Chief Justice.

Plaintiff's action is in equity. The petition asserts that the defendant's franchise permitting it to occupy the streets and alleys in the plaintiff city and to conduct the business of furnishing telephone service to the city and its residents expired in 1951, and since that time the defendant has been occupying the public streets and alleys without lawful right to do so. It is prayed that the defendant be enjoined from so using and occupying the streets and alleys, that a declaratory judgment be entered holding that it has no right so to do, and for a mandatory injunction commanding it to remove its lines. The defendant answered in effect asserting that it holds a perpetual right to use the streets and alleys; that it and its predecessors in interest have been so occupying the streets and alleys since prior to October 1, 1897, and that under statutes in force prior to that date persons or corporations were given the right to construct telephone lines in and upon the highways of the state which could not be revoked or cancelled by any action of the cities or towns. By amendment to its answer the defendant also pleaded laches and estoppel.

By way of reply, the plaintiff denied that the defendant acquired any franchise rights which might have existed prior to October 1, 1897; denied that such rights, if any existed, were transferable; and pleaded abandonment of any franchise existing before the date last named. The case proceeded to trial upon the issues so framed, with the result that a decree and judgment were entered upholding the claim of the defendant that it holds under a perpetual franchise granted by the State of Iowa.

October 1, 1897, is the date when the enacted Code of 1897 became effective. Prior to that time, under Section 780 of the Code of 1851, identical in effect with Section 1324 of the Code of 1873, and person, firm or corporation was given the right to construct telegraph lines along the public highways of the state. By Chapter 104 of the Acts of the Nineteenth General Assembly this was amended in 1882 to include telephone lines, I.C.A. §§ 488.1, 488.2. This was the state of the law prior to October 1, 1897; and it has been held in a long line of cases that prior to that date cities and towns had no right to prohibit the use of their streets by telephone lines, or to grant franchises to persons or companies desiring to construct such lines. The first case reaching this point was Chamberlain v. Iowa Telephone Company, 119 Iowa 619, 93 N.W. 596. It was followed by State v. Nebraska Telephone Company, 127 Iowa 194, 103 N.W. 120; State ex rel. Larimer v. Chariton Telephone Company, 173 Iowa 497, 155 N.W. 968; State ex rel. Shaver v. Iowa Telephone Company, 175 Iowa 607, 154 N.W. 678, Ann.Cas.1917E, 539; City of Des Moines v. Iowa Telephone Company, 181 Iowa 1282, 162 N.W. 323; City of Cherokee v. Northwestern Bell Telephone Company, 199 Iowa 727, 202 N.W. 886; City of Osceola v. Middle States Utilities Company, 219 Iowa 192, 195, 257 N.W. 340, 342; and City of Audubon v. Northwestern Bell Telephone Company, 232 Iowa 79, 82, 5 N.W.2d 5, 6.

The importance of the October 1, 1897 date stems from the fact that the enacted Code of 1897 which went into effect on that date contains Section 776, which provides that 'No franchise shall be granted * * * by any city or town for the use of its streets, highways, avenues, alleys or public places, for any of the purposes named in the preceding section (among which were telephone wires and poles), unless a majority of the legal electors voting thereon vote in favor of the same at a general or special election. * * *'. It was held in Farmers' Telephone Company of Quimby v. Town of Washta, 157 Iowa 447, 133 N.W. 361, that after the taking effect of Section 776, supra, cities and towns were empowered to grant franchises to those desiring to use the public streets for the construction of telephone lines. Prior to that time the case held that the state had not delegated power to municipalities to prohibit the use of their streets for telephone lines, but that the state statute, Section 1324 of the Code of 1873, as amended by Chapter 104, Acts of the Nineteenth General Assembly, supra, granted such rights to persons, firms or corporations and the cities and towns could not forbid it. So those who had built lines prior to October 1, 1897, are held to have secured perpetual rights, while those constructing such lines after that date are subject to control by the municipalities under Sections 775 and 776, Code of 1897, now found in substance as Sections 386.1 and 386.3 of the Code of 1958, I.C.A.

I. It thus becomes apparent that the facts as to whether there were existing telephone lines and rights in Emmetsburg prior to October 1, 1897, and whether the defendant has acquired these rights, are of the utmost importance. There is little or no dispute that the Emmetsburg Telephone Company was incorporated on October 21, 1897, and shortly thereafter began operating a telephone system in the City; that on November 16, 1926, it transferred its rights to one G. N. Clark, who on November 24, 1926, in turn transferred to the Iowa Union Telephone Company; and on December 17, 1938, this company transferred its rights to the defendant. It is the situation prior to the operation by the Emmetsburg Telephone Company and what, if any, rights it received from persons who may have been the owners of telephone lines and equipment prior to October 1, 1897, that form the basis for controversy here.

II. In this connection, the perpetuated testimony of one J. H. Godden is vital. It is not an exaggeration to say that the defendant's case depends upon this testimony. The records of the Emmetsburg Telephone Company had been lost or destroyed, and were not available at the trial. It was necessary for the defendant to prove its case by the recollections of persons who were living at the time the Emmetsburg Company began operation and some years prior thereto. Since the defendant admits it is occupying the streets with its lines, it is necessary that it justify such occupation; which means that the burden of proof is upon it to show by what right it is there. As we said in City of Audubon v. Northwestern Bell Telephone Company, supra, the years that have elapsed since the first telephone lines and equipment were installed makes it difficult to procure exact evidence concerning them, their rights and their franchises. This is still more pointed now then at the time the Audubon case was decided, in 1942. Since the important date is October 1, 1897, it has become more and more difficult to find witnesses who can testify as to events prior to that time, and their recollections are apt to be more and more uncertain. Of course, as the plaintiff well says, difficulty of procuring evidence does not excuse the party upon whom rests the burden of proof from making his case.

Probably with this situation in mind and being cognizant of the added difficulties imposed by the passing of the years, the defendant's immediate predecessor in interest, the Iowa Union Telephone Company, in 1938 took time by the forelock and undertook to perpetuate the testimony of two residents of Emmetsburg who were thought to have knowledge of the telephone situation in that city on and prior to October 1, 1897. One of these was J. H. Godden, above referred to. He was seventy-seven years of age at the time, and died shortly after his deposition was taken. The other, Dwight G McCarty, was still living at the time of the trial, and so his deposition could not be used, except for one answer to which reference will be made later.

The Iowa Union Telephone Company filed its application under the provisions of Section 11400 of the Code of 1935, then in effect. We set out this section herewith. '11400. Petition. The testimony of a witness may be perpetuated in the following manner: The applicant must file in the office of the clerk of the district or superior court a verified petition, which shall set forth the subject matter relative to which testimony is to be taken, the names of the persons interested, if known, and, if not, such general description as he can give of such persons, as heirs, devisees, alienees, or otherwise. It must also state the names of the witnesses to be examined, the interrogatories to be propounded to each, that the applicant expects to be a party to an action in a court of the state, in which such testimony will, as he believes, be material, and the obstacles preventing the immediate commencement of the action, where he expects to be the plaintiff.'

The application recited that it operated a telephone exchange in Emmetsburg, certain wires, poles and other apparatus occupied the streets and alleys and had so occupied them since prior to October 1, 1897, and applicant is entitled to so occupy said streets and alleys. The fact that such streets and alleys have been occupied by said wires and poles and they have been used for rendering service to the public can be proved only by persons of advanced age who are familiar with the facts and unless their testimony is perpetuated it will soon be impossible to prove such facts. It is further alleged that applicant expects, at some future date, to be a party defendant in a court of this state in which the matter of the occupation of the streets and alleys by telephone poles and wires used in rendering service to the public will be in issue.

The application was granted, and the depositions of Godden and McCarty were duly taken. Objection was interposed to the admission of the perpetuated...