Cumberland Telephone And Telegraph Company v. City of Mount Vernon
| Decision Date | 04 April 1911 |
| Docket Number | 21,679 |
| Parties | Cumberland Telephone and Telegraph Company v. City of Mount Vernon |
| Court | Indiana Supreme Court |
Rehearing Denied June 22, 1911.
From Posey Circuit Court; O. M. Welborn, Special Judge.
Action by the City of Mt. Vernon against the Cumberland Telephone and Telegraph Company. From a judgment for plaintiff defendant appeals.
Affirmed.
Walker & Walker, Roscoe U. Barker and Baker & Baker, for appellant.
G. V Menzies, James H. Blackburn and William Vosloh, for appellee.
Appellee sued appellant to abate a nuisance, consisting of an alleged unlawful occupancy by appellant of the streets and alleys of the city of Mount Vernon with poles and wires used by it in conducting a telephone business in that city. There was a trial by the court, and a judgment for appellee.
The errors assigned are the overruling of appellant's demurrer to the complaint, and the overruling of its motion for a new trial.
The complaint alleges that defendant, after notice to remove the poles and wires, is, without license or consent of plaintiff, unlawfully maintaining them, thereby obstructing the streets and alleys of said city. The complaint is sufficient to repel a demurrer. Coverdale v. Edwards (1900), 155 Ind. 374, 47 L.Ed. 487, 58 N.E. 495; City of Valparaiso v. Bozarth (1889), 153 Ind. 536, 55 N.E. 439, 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: Appellant is a corporation, organized under the laws of Kentucky, and engaged in operating telephone lines and exchanges. On January 6, 1891, the city of Mount Vernon enacted an ordinance, granting to appellant the right to erect and maintain telephone poles and lines in the streets and alleys of the city for a limited time. By section four of the ordinance, the city reserved the right to repeal it at any time after fifteen 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 Mount Vernon adopted an ordinance, granting to the American Telephone and 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. One of the conditions was that the company should furnish, free of cost to the city, space on its poles for fire alarm and police wires, and another required 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 and 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 asked 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 said ordinance. When this assignment was made, appellant knew that the American Telephone and Telegraph Company had never taken any action under the ordinance, and the assignment was procured by appellant because its own franchise was about to expire. No formal notice to the city was given by appellant of its purchase of the franchise, nor was any record made of the assignment on appellant's records at Mount Vernon. The only...
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