City of Marshfield v. Wis. Tel. Co.

• Decision Date: 04 April 1899
• Parties: CITY OF MARSHFIELD v. WISCONSIN TELEPHONE CO.
• Court: Wisconsin Supreme Court

102 Wis. 604

78 N.W. 735

CITY OF MARSHFIELD

v.WISCONSIN TELEPHONE CO.

Supreme Court of Wisconsin.

April 4, 1899.

Appeal from circuit court, Wood county; W. C. Silverthorn, Judge.

Action by the city of Marshfield against the Wisconsin Telephone Company for injunction. From an order denying a motion to dissolve a preliminary injunction, defendant appeals. Affirmed.

The defendant, the Wisconsin Telephone Company, is a corporation organized under the laws of this state, and is authorized by its charter to build telephone lines and to conduct a telephone business in this state. It maintains 75 different telephone exchanges in the cities and towns of Wisconsin, with wires, strung on poles, connecting said exchanges with each other and with exchanges in other states. It has constructed a line from the city of Stevens Point, westerly, to the city of Chippewa Falls, passing just outside the northerly limits of the city of Marshfield, which was completed in the spring of 1898. It was desirous of establishing a public station in said city, and proposed to construct a line of poles along Central avenue to some convenient point where the station was to be located. Central avenue is the main business street of the city, and has been paved along the business portion thereof, and upon it the greater portion of the travel and business of the city is done. It has been the policy of the city to keep that portion of this street between D and Sixth streets clear of all obstructions, and for more than five years it has uniformly denied to all persons the privilege of placing telephone, telegraph, electric light, or other poles in or along the same. In February, 1898, the city granted to R. L. Kraus and K. W. Doege an exclusive permit for 15 years to erect and maintain a system of wires and poles upon the streets of said city, for the purpose of establishing a telephone exchange therein, upon certain conditions, specified in the ordinance, and under the direction of the board of public works. On October 14, 1898, the defendant with a force of men commenced the erection of a run of poles from the intersection of its main line with Central avenue southerly along said avenue, towards the central and main portion of the city, and placed and set a number of poles therein, without permission of any of the city authorities. The latter objected to this procedure, and under their direction the poles so set were chopped down and removed. Thereupon the city commenced this action to restrain defendants from placing any poles on Central avenue, or in any of the streets of the city, except under the direction and with the consent of the board of public works; claiming that the digging up of the soll and pavement, and the placing of poles in said street, would be a permanent injury and obstruction thereto. A temporary injunction was obtained and served. Thereupon defendants obtained an order to show cause why the injunctional order should not be vacated. On the hearing the defendants submitted a modified motion, to the effect that, if the court should be of opinion that the defendants should be restrained from constructing their line upon Central avenue, then that the order be so modified as to permit the line to be constructed upon some other streets in said city. Both motions were denied, and the original order was allowed to stand. This appeal is to review the order denying the motion to dissolve the injunction.

Miller, Noyes, Miller & Wahl, for appellant.

P. A. Williams, for respondent.

BARDEEN, J. (after stating the facts).

Both parties admit the public character of the streets of a city and the almost omnipotent control of the legislature over their use. The city does not own, and cannot alien, its streets. It cannot rightfully authorize obstructions therein without legislative authority. Its duties and obligations with respect thereto are defined in its charter. The general law grants powers and privileges to persons or corporations like the defendant company, to be exercised by municipal consent or subject to municipal limitations. Section 1778, Rev. St. 1898, under the interpretation of this court, authorizes the use of the highways of this state by corporations like the defendant, by their poles and wires, provided they are so set as not to obstruct or incommode the public use thereof. Wisconsin Tel. Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. 828;Roberts v. Telephone Co., 77 Wis. 589, 46 N. W. 800. And see State v. Janesville St. Ry. Co., 87 Wis. 72, 57 N. W. 970. It is conceded by appellant that this section does not deprive cities of their power of police control over the manner in which such work shall be done, and that they may adopt, by ordinance, all reasonable regulations for the location and use of telephone poles and wires in the streets. Section 4, subc. 4, c. 160, Laws 1891 (plaintiff's charter), provides that: “The common council shall have authority by ordinances, resolutions, by-laws or regulations: * * * (26) To lay out, make, open and keep in repair, alter or discontinue, any highways, streets, lanes or alleys, and to keep them free from incumbrances and to protect them from injury. (27) To establish and alter the grades of streets, and to regulate the manner of using the streets in said city, and to protect the same from injury by vehicles used thereon.” Construing similar...