Crawford v. Alabama Power Co.

• Decision Date: 15 May 1930
• Docket Number: 4 Div. 442.
• Citation: 221 Ala. 236,128 So. 454
• Parties: CRAWFORD v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

128 So. 454

221 Ala. 236

CRAWFORD v. ALABAMA POWER CO.

4 Div. 442.

Supreme Court of Alabama

May 15, 1930

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Bill for injunction by J. L. Crawford against the Alabama Power Company. From a decree dismissing the bill, complainant appeals.

Affirmed.

R. W Miller, of Abbeville, for appellant.

Martin Thompson, Turner & McWhorter and J. C. Blakey, all of Birmingham, for appellee.

GARDNER J.

The sole question presented is whether or not the erection of the transmission line on the public highway creates an additional servitude upon the fee of the abutting owner. The defendant company is a public service corporation, and the distribution of its electric current for heat, light, and power among the inhabitants of the territory to be served is a public use. State of Washington, ex rel., etc Superior Court, 142 Wash. 270, 253 P. 115, 58 A. L. R. 779; Mt. Vernon Woodberry Cotton, etc., Co. v. Alabama Interstate Power Co., 240 U.S. 30, 36 S.Ct. 234, 60 L.Ed. 507; Weigand v. Alabama Power Co. (Ala. Sup.) 127 So. 206.

That the use of a public highway for such purpose is a legal and proper one is well supported by the authorities. State of Kansas ex rel. v. Webber, 88 Kan. 175, 127 P. 536, 43 L. R. A. (N. S.) 1033; 20 Corpus Juris, 324; 9 R. C. L. 1193.

There is here, however, presented no occasion for consideration of those authorities in view of the express provision of our statute (section 7197, Code 1923) that "such corporations shall have the right and authority to erect and operate tower, pole and wire lines across, along, and on public roads, subject to the regulation of the court of county commissioners or board of revenue of the counties in which said roads are located." In the erection, therefore, of the transmission line on the public road defendant was in the exercise of a legal right in a proper manner, and for a public purpose, as disclosed by the admitted facts.

Upon the question of infringement upon the rights of the abutting property owner by the erection of such and kindred lines as telephone and telegraph, the authorities are in irreconcilable conflict. A review of them here would serve no useful purpose, and extend this opinion to undue length. In the following citations will be found the cases presenting the varying views of the courts: Karcher v. Wheeling Electrical Co., 94 W.Va. 278, 118 S.E. 154, 30 A. L. R. 1044; Citizens' Tel. Co. v. Cincinnati, N. O. & T. R. R. Co., 192 Ky. 399, 233 S.W. 901, 18 A. L. R. 615; N.Y. Cent. & Hudson R. R. Co. v. Cent. Mass. Electric Co., 219 Mass. 85, 106 N.E. 566, L. R. A. 1915B, 822; Cumberland Tel. & Tel. Co. v. Avritt, 120 Ky. 34, 85 S.W. 204, 8 Ann. Cas. 955; Frazier v. East Tenn. Tel. Co., 115 Tenn. 416, 90 S.W. 620, 3 L. R. A. (N. S.) 323, 112 Am. St. Rep. 856; Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543; Query v. Postal Tel.-Cable Co., 178 N.C. 639, 101 S.E. 390, 8 A. L. R. 1290; McCann v. Johnson County Tel. Co., 69 Kan. 210, 76 P. 870, 66 L. R. A. 171; Gurnsey v. Northern Calif. Power Co., 160 Cal. 699, 117 P. 906, 36 L. R. A. (N. S.) 185; People v. Eaton, 100 Mich. 208, 59 N.W. 145, 24 L. R. A. 721; Callen v. Columbus Edison Elec. Light Co., 66 Ohio St. 166, 64 N.E. 141, 58 L. R. A. 782; City of Milwaukee v. Milwaukee Electric Ry. & Light Co., 173 Wis. 400, 180 N.W. 339, 181 N.W. 821, 13 A. L. R. 802; 20 Corpus Juris, 721; Benton v. Yarborough, 128 S.C. 481, 123 S.E. 204, 34 A. L. R. 402; 10 R. C. L. 113; 4 Permanent Sup. R. C. L. pp. 2652-3; Curtis Law of Electricity, §§ 278-291; Keasebey on Electric Wires, c. IX.

The conflicting opinions are well illustrated by the following taken from Curtis on the Law of Electricity, § 278: "On the question whether an electric, telephone or telegraph line is an additional servitude upon the abutting owner, practically the only point that the courts are in harmony on is that there is an irreconcilable conflict in the decisions. The situation was pertinently summed up by the Supreme Court of Kansas in the following language: 'Few questions have received more consideration from the courts in recent years, or given rise to more conflict of judicial opinion, than this one. In some cases the use has been limited to travel by such methods as were in vogue when the highway was established, while others include all method, old or new, and hold it to be, immaterial whether they were in use, or even thought of, when the easement was acquired. Some confine the use to moving persons, animals, and vehicles, while others would include stationary appliances used in the propulsion or conveyance of persons and things over the highways. By some it is limited to transportation of persons and things tangible while others extend it to communications which are transmitted unseen, by electric vibrations. Some treat it as an additional burden when the fee of the highway is in the adjoining owner, and others do not regard it to be such whether the fee is in the public or the adjoining owner. In still others a distinction is made between highways in the country and streets in the city, holding that city streets have always been designed and used for purposes not appropriate for rural highways.' All courts, however, agree that if special damage of a substantial nature is caused to the abutting owner, such as arises from the obstruction of the right of passage to and from the highway, the owner is entitled to relief."

As stated by the author of the note to Frazier v. East Tenn. Tel. Co., supra: "The question depends primarily, of course, upon what may be considered the purposes for which a street is dedicated or established,-whether its use must be confined to the recognized uses at the time of its establishment, or whether it may be subjected to new modes of use which advancing civilization and the increased complexity of business and social life render necessary." And as said by the court in Building Association v. Bell Tel. Co., 88 Mo. 258, 57 Am. Rep. 398: "When the public acquires a street, either by condemnation, grant, or dedication, that it may be applied to all uses consistent with, and not subversive of the proper uses of a street, and not inconsistent with the uses contemplated in the dedication, grant or condemnation, and that it is only when the street is subjected to a new servitude, inconsistent with and subversive of its use as a street, that the abutting owner can complain. The diversity of opinion is not as to the rule itself, but as to its application, that is, as to whether this or that particular use is not consistent with the proper use of the street."

Upon the one hand many of the courts hold to the view that the proper use of the public streets and highways is to be determined by the use in vogue at the time of the dedication while, upon the other, the courts adopted the broader view that the uses of a public highway were expansive, not confined to uses already permitted or even in contemplation at the time, but admitting new uses, consistent and proper, as civilization...