Cosgriff v. Tri-State Tel. & Tel. Co.

• Decision Date: 11 May 1906
• Citation: 107 N.W. 525,15 N.D. 210
• Court: North Dakota Supreme Court
• Parties: COSGRIFF et al. v. TRI-STATE TELEPHONE & TELEGRAPH CO.

15 N.D. 210

107 N.W. 525

COSGRIFF et al.

v.TRI-STATE TELEPHONE & TELEGRAPH CO.

Supreme Court of North Dakota.

Feb. 28, 1906.

Rehearing Denied May 11, 1906.

Syllabus by the Court.

The construction and operation of a telegraph and telephone line upon a rural highway is not a highway use, within the purpose of the original dedication of the highway, but is a new use, and constitutes an additional servitude upon the fee of the abutting owner for which he is entitled to compensation.

Rev. St. U. S. §§ 5263-5268 [U. S. Comp. St. 1901, pp. 3579-3581], which authorize the construction of telegraph lines along “post roads,” upon complying with certain conditions, does not affect the right of an abutting landowner to compensation for the burden imposed upon the fee by the erection of a line upon a rural highway, which is a post road.

Appeal from District Court, Grand Forks County; C. J. Fisk, Judge.

Action by M. A. Cosgriff and others against the Tri-State Telephone & Telegraph Company. Judgment for defendant, and plaintiffs appeal. Reversed.Skulason & Skulason, for appellants. J. B. Wineman, George A. Bangs, and Tracy R. Bangs, for respondent.

YOUNG, J.

The plaintiffs brought this action to enjoin the defendant from constructing and operating a long distance telephone and telegraph line on a certain rural highway in Chester township, Grand Forks county. The plaintiffs own seven quarter sections of land abutting upon the highway, which is located upon a section line. The defendant is a foreign corporation regularly authorized to do business in this state. It obtained the consent of the township supervisors to construct its line over the highway in question, but did not obtain the consent of the plaintiffs, who are abutting owners, and it has not compensated them for the taking of the property or instituted condemnation proceedings. The plaintiffs allege that the defendant's acts are in violation of section 14 of the state Constitution, which provides that “private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money or ascertained and paid into court for the owner, * * *” and section 5955, Rev. Codes 1899, which contains the same provision. The plaintiffs applied for a temporary injunction upon notice, and after a hearing it was denied, and plaintiffs have appealed from the order denying the same.

It is agreed that the sole and controlling question is whether the construction of a telephone and telegraph line upon a rural highway constitutes an additional servitude on the fee of the abutting owners. The trial court held that it does not, and, in support of this conclusion, counsel for defendant urges two grounds: (1) That the maintenance of a telephone and telegraph line upon a rural highway is a proper highway use, within the purpose of the grant of the easement, and does not therefore constitute an additional servitude; and (2) that, irrespective of the question as to whether it is a proper highway use, the defendant has the right to the use it is now attempting to assert under the authority of section 5263, 5264, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 3579, 3580].

Both contentions must be denied. The first ground has already been ruled upon by this court and adversely to the defendant's contention. In Donovan v. Allert, 11 N. D. 289, 91 N. W. 441, 58 L. R. A. 775, 95 Am. St. Rep. 720, this court held, after mature deliberation and an extended review of the authorities, that the construction of a telephone line upon the streets of a city imposed a new servitude upon the fee of the abutting owner, for which he was entitled to compensation. The rights of a landowner whose land abuts upon a rural highway are not inferior to those of one whose land abuts upon the streets of a city. This is conceded. Indeed it has been often held that the rights of the owner of land abutting upon the streets of a city are more restricted. This distinction, which is sometimes made, rests upon an alleged difference in the purpose of the original dedication. Eels v. A. T. & T. Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640; Croswell on Electricity, §§ 117, 126. The underlying principle which must govern is the same, however, in either case. The proposed use must be within the purpose of the original dedication. If it is not, it constitutes an additional servitude, whether it be of a street or rural highway. Cases like this primarily involve a determination of property rights, and, where it is held that a new servitude is imposed, it follows necessarily that the fee owner is entitled to relief. The point of difference, and it is the only one which can logically serve as a basis for different conclusions, is as to the original purpose of the grant of the easement. Rights which have been granted to the public cannot be claimed by the abutting landowner. Such rights as have not been granted to the public remain in him and should be protected to the same extent as any other property right. In Donovan v. Allert, supra, this court held that the construction and operation of a telephone line upon a street was not a proper street use, and, in stating the original purpose of the dedication, used the following language: “The primary use of a street or highway is confined to travel or transportation. Whatever the means used, the object to be attained is passage over the territory embraced within the limits of the street. Whether as a pedestrian, or on a bicycle, or in a vehicle drawn by horses or other animals, or in a vehicle propelled by electricity, or in a car drawn by horses or moved by electricity, the object to be gained is moving from place to place. The same idea is expressed by courts and text-writers by the statement that ‘motion is the primary idea of the use of streets.’ * * * The streets of the city were given to the public for public use. What is understood by ‘public use’? The primary intention and idea of the use of the street was for travel-moving from place to place in any way that does not interfere with the use of the street for travel in any other way. The manner or mode of travel is not restricted to those known or in use at the time of the dedication, but may be those modes of travel that are the result of modern invention.” The weight of authority and reason supports the views set forth in the above case. See cases cited in opinion. The leading cases to the contrary are Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7;People v. Eaton, 100 Mich. 208, 59 N. W. 145, 24 L. R. A. 721;Building Ass'n v. Bell Tel. Co., 88 Mo. 258, 57 Am. Rep. 398; and Cater v. N. W. T. Ex. Co., 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543-in each of which the decision was by a divided court. The cases opposed to the majority view differ as to the basis of their conclusion. Some courts have held that the primary and original purpose of the dedication of a street or highway includes the transmission of intelligence as well as public travel. To this class belongs Pierce v. Drew, supra, and other cases which might be cited. These cases have the merit of being logical in their conclusion for, adopting the view, which in our opinion is erroneous, that a street or highway is dedicated for use, both for travel and the transmission of intelligence, it follows necessarily that the maintenance of a telephone is not a new use, and this would also be true of any and all new modes of communication which ingenuity may devise. Other courts, while not expressly denying that the primary purpose of dedication of a highway is for travel, as above stated, apparently rest their decision upon public policy or what they deem to be the requirements of the public good. As illustrative of this class may be cited McCann v....