Cumberland Tel. & Tel. Co. v. City of Mt. Vernon

• Decision Date: 04 April 1911
• Docket Number: No. 21,679.,21,679.
• Citation: 94 N.E. 714,176 Ind. 177
• Court: Indiana Supreme Court
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. CITY OF MT. VERNON.

176 Ind. 177

94 N.E. 714

CUMBERLAND TELEPHONE & TELEGRAPH CO.

v.CITY OF MT. VERNON.

No. 21,679.¹

Supreme Court of Indiana.

April 4, 1911.

Appeal from Circuit Court, Posey County; O. M. Welborn, Judge.

Action by the City of Mt. Vernon against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Walker & Walker, Baker & Baker, and Roscoe M. Barker, for appellant. J. H. Blackburn, G. V. Menzies, and Will R. Vosloh, for appellee.

MORRIS, J.

Appellee sued appellant to abate a nuisance, consisting of an alleged unlawful occupancy by appellant of the streets and alleys of the city of Mt. Vernon, with poles and wires used by it in conducting a telephone business in that city. There was a trial by court, and judgment for appellee. The errors assigned are the overruling of appellant's demurrer to the complaint, and overruling its motion for a new trial.

[1] The complaint alleges that defendant, after notice to remove the same, was unlawfully maintaining, without license or consent of plaintiff, poles and wires stretched thereon, in the streets and alleys of the city, and thereby obstructing the same. The complaint is sufficient to repel a demurrer. Coverdale v. Edwards (1900) 155 Ind. 374, 58 N. E. 495;City of Valparaiso v. Bozarth (1899) 153 Ind. 536, 55 N. E. 439, 47 L. R. A. 487, and cases cited.

The grounds assigned for a new trial, and argued in appellant's brief, are that the decision of the lower court was not sustained by sufficient evidence and was contrary to law. The record discloses the following facts: The appellant is a corporation, organized under the laws of Kentucky, engaged in the business of operating telephone lines and exchanges. On January 6, 1891, the city of Mt. Vernon enacted an ordinance granting appellant the right to erect and maintain telephone poles and lines in the streets and alleys of the city for a limited time. The city reserved, by section 4 of the ordinance, the right to repeal the same at any time after 15 years from its passage. Appellant, in writing, accepted the ordinance, and agreed to be bound by its conditions, and thereupon constructed a system of telephone lines in the streets and alleys of the city, and operated a telephone exchange therein, pursuant to the provisions of the ordinance. On February 20, 1899, the city council of Mt. Vernon adopted an ordinance, granting to the American Telephone & Telegraph Company of Indiana, its successors and assigns, the right, privilege, and authority to construct, operate, and maintain lines of telephone, including necessary poles, wires, and fixtures, upon, along, and under the highways of the city, upon certain terms and conditions, as the ordinance provided, among which conditions was one providing that the company should furnish, free of cost to the city, space on its poles for fire alarm and police wires, and another requiring the company to indemnify the city against damage or liability caused by the negligent construction or maintenance of its lines. To this ordinance was appended the following: “The American Telephone & Telegraph Company of Indiana hereby accepts this ordinance and all the rights and the terms and conditions imposed.” This blank form of acceptance was never signed by the company, nor did it ever accept the ordinance in writing. It never at any time did any work towards the construction of a telephone system in the city, nor did it do anything that indicated that it intended to be bound by the ordinance, unless such obligation should be inferred from the fact that at the time the ordinance was adopted by the city council a representative of the company was present and asking its adoption.

On February 6, 1906, the company, in writing, assigned to appellant for $500 all the right, title, and interest that it had to maintain telephone poles, wires, and fixtures upon the highways of the city, under the above ordinance. When this assignment was made, appellant knew that the American Telephone & Telegraph...