County Court of Wyoming County v. White
| Decision Date | 30 January 1917 |
| Docket Number | 3312. |
| Citation | 91 S.E. 350,79 W.Va. 475 |
| Parties | COUNTY COURT OF WYOMING COUNTY v. WHITE ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 17, 1917.
Syllabus by the Court.
It is the duty of a telephone company, occupying a public highway under a franchise from the county court, to remove and reset its poles and lines at its own expense, when notified to do so, if they are so situated as to interfere materially with the work, lawfully prosecuted, of permanently improving such highway. The franchise of such telephone company is subordinate to the rights of the traveling public in the highway.
Although the county court is authorized by statute to remove and reset such telephone poles, and to charge the expense thereof to the owner, it is not obliged to do so, and may demand a writ of mandamus to compel their removal by the owner.
Telephone poles standing on the right of way in such proximity to the traveled road as to materially interfere with the work of permanently improving it constitute an obstruction to the use of the public road by the traveling public, within the meaning of section 56a (77), c. 43, Barnes' Code (Code 1913, § 1844).
The pendency of a suit brought by such telephone company simply to enjoin the county court and its contractors, engaged in making permanent highway improvement from willfully and wantonly destroying its poles and wires and the granting of a temporary injunction order restraining such willful trespass, is no impediment to the right of the county court to apply for a writ of mandamus to compel such telephone company to remove its poles and lines.
Mandamus by County Court of Wyoming County against Guy White and others. Peremptory writ ordered.
M. F Matheny, of Charleston, R. D. Bailey, of Baileysville, and J Albert Toler and E. W. Worrell, both of Pineville, for petitioner.
S.D. Stokes, of Williamson, and R. E. Hughes, of Charleston, for respondents.
Upon direct application to this court by the county court of Wyoming county for a mandamus to compel Guy White and Ulvert O. Sanders, partners, doing business in the name of the Wyoming Telephone Company, to remove certain telephone poles which had been erected on the right of way along certain public roads of the county, under a franchise granted by the said county court, but which now interfere with the work now in progress of permanently improving said roads, an alternative writ was issued, to which respondents demurred, and also made return. From the pleadings, exhibits, and affidavits the following facts appear:
Under a franchise granted to it by the county court of Wyoming county in the year 1905 the Wyoming Telephone & Development Company erected its telephone lines along certain public roads in the county. The lines and franchise have since passed to respondents, who are now operating the lines as partners, under the name of the Wyoming Telephone Company.
In August, 1915, the voters of that county voted a bond issue of $550,000 for the purpose of permanently improving certain public roads of the county along some of which the telephone lines had been erected. The bonds were issued and sold, and in April, 1916, the county court contracted with Henning & Hagerdon, a corporation, for the work of permanently improving the road leading from Mullens to Pineville, and at the same time with Winston & Co., a corporation, for the improvement of the road between Pineville and Oceana, with John P. and C. P. Keeley, partners doing business as Keeley Bros., for the improvement of the road from Oceana to Baileysville, and with T. Towles & Co., a corporation, for the permanent improvement of the road from Baileysville to the McDowell county line. The several contractors gave bond and began work of construction. The roads were narrow and led through a virgin forest along the narrow mountain streams and by overhanging cliffs, and, in order to carry on the work and complete it according to specifications, it becomes necessary to remove a great many telephone poles that stood so near to the edge of the roadbed as to be in the way of blasting rock and shoveling earth necessary to be removed in order to make the road of specified width. Pursuant to orders of the county court, the road engineer notified respondents to remove certain designated poles standing along the road between Pineville and Mullens and between Pineville and Oceana, and that, if they did not remove and reset them, they would be reset at the instance of the road engineer, and the expense thereof charged to respondents, as provided in section 56a(79), c. 43, Code (sec. 1846). The notice was not heeded, and the engineer did remove and reset a number of the poles. But many of them yet remain as originally set and materially interfere with the construction work.
Previous to the filing of relator's petition in this court, White and Sanders had filed their bill in the circuit court of Wyoming county against the county court, which suit was later removed to the circuit court of Mercer county, and procured a temporary injunction restraining the county court, the road engineer, and the contractors "from willfully and deliberately destroying" plaintiffs' poles and wires, and from molesting or damaging said property "any further than was necessary on account of said improvement," and commanding them to "remove and reset said poles." Although the return purports to exhibit a copy of the injunction order, it is not found among the papers. However, it is admitted the injunction is temporary only. It appears to be reasonably certain that the poles which the defendants in the injunction suit were commanded to reset were the ones alleged to have been willfully cut down by the contractors, and not the poles then standing. That suit has not been disposed of, and is now pending on motion to dissolve the injunction. Pending that motion the county court has applied to this court for a writ of mandamus to compel respondents to remove their poles...
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