City of Plattsmouth v. Nebraska Telephone Co.
| Decision Date | 09 January 1908 |
| Docket Number | 15,025 |
| Parties | CITY OF PLATTSMOUTH, APPELLANT, v. NEBRASKA TELEPHONE COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cass county: PAUL JESSEN, JUDGE. Affirmed.
AFFIRMED.
H. D Travis, for appellant.
W. W Morsman and Matthew Gering, contra.
DUFFIE C. EPPERSON and GOOD, CC., concur.
The plaintiff brought this action in equity for a mandatory injunction, in which alternative relief is prayed. The material allegations of the petition are the following: (1) That the city of Plattsmouth has never granted defendant any lawful or sufficient franchise, nor any franchise to occupy the streets and alleys of the city; (2) that defendant has been occupying the streets and alleys of the city for more than 15 years without right or authority; (3) that defendant has erected its poles and wires in Main street, along the south side, from First to Eighth streets, and has continued the same since the year 1888; that such poles and wires are dangerous to pedestrians and to property, are old and rotten, were used by the public as hitching posts for horses, and that thereby a nuisance was created; that the poles and wires interfere with the firemen in case of fire, and that the poles are unsightly; that in November, 1899, the city, by ordinance, required the defendant to place its wires underground in Main street, and that it failed and refused to comply with said ordinance; that in 1904 the city passed an ordinance requiring defendant to move its poles and wires from Main street to the alleys adjoining. The prayer is for an injunction against the use of the streets, alleys and public grounds of the city of Plattsmouth by the defendant, and that it be enjoined from operating its telephone system in the city; and, alternatively, if the court should find that the defendant had been granted a franchise for the use of the streets, that it then be required to remove its poles and wires from Main street between First and Eighth streets to the alleys north and south of Main street.
The answer admits that defendant has occupied the streets of the city and carried on its business therein, as alleged, for more than 15 years; that it has continuously maintained its poles and wires in and along the south side of Main street since the year 1888; that the city passed an ordinance in 1904, as alleged in the petition, requiring the defendant to remove its poles and wires to the alleys north and south of Main street, and which, defendant alleges, affirmatively repealed all prior conflicting ordinances. For a second defense it is alleged that defendant has maintained its poles and wires in Main street in the same place for more than 15 years with the knowledge and consent of the city; that in October, 1898, the city, by ordinance, granted defendant the right to occupy all the streets of the city without restriction, reserving to itself the free use of such poles for its own fire alarm wires; that immediately after the passage of said ordinance defendant expended large sums of money in reconstructing its poles and wires in Main street; that its central office is in Main street and on the south side thereof; that Main street is 100 feet in width; that the sidewalks on each side are 20 feet wide; that defendant's poles are set at the curb line, 20 feet from the front walls of the buildings, and 160 feet apart; that there has never been on the south side of the street any building more than two stories high; that there never has been, and there is no prospect of, any congestion of the business in said street with which the poles of defendant will interfere in any degree whatever; that the alleys north and south of Main street are only 13 feet wide; that, if defendant's poles are set therein, they must be set 2 1/2 feet from the line to avoid projecting the cross-arms over private property; that the change will cost $ 1,500, which is more than the net income from the defendant's system in said city in five years; that the ordinance passed in 1904 was not passed in the interests of the public and was an abuse of municipal power; that the ordinance is unreasonable, as the removal of defendant's poles and wires will serve no public interests, and its enforcement will impair the obligation of the contract between the city and the defendant.
On the trial the district court found generally for the defendant and dismissed the plaintiff's petition. The plaintiff has appealed.
The evidence shows that in each alley north and south of Main street there is a telephone line belonging to another company on one side of such alley and an electric light line belonging to the city on the other side. It is conceded that prior to October, 1898, defendant had no franchise granted by the city, the general statute relating to cities and villages of the class to which Plattsmouth belonged being deemed sufficient; but on that date the city passed an ordinance granting certain rights and privileges to the Nebraska Telephone Company, its successors and assigns, and regulating the erection of poles and wires and protecting the same. The ordinance, No. 91, so far as material to an examination of the questions involved, is as follows: Section 2 provides for stringing the wires 20 feet above the ground, and for the temporary removal of the poles and wires in case they obstructed any vehicle or structure being moved along or across any street or alley. Section 3 fixes the maximum rate allowed to be charged by the company, and section 4 makes it an offense to injure any poles, wires or instruments of the company. Soon after having completed the...
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