Dailey v. State

• Decision Date: 21 May 1894
• Citation: 51 Ohio St. 348,37 N.E. 710
• Parties: DAILEY et al. v. STATE.
• Court: Ohio Supreme Court

37 N.E. 710

51 Ohio St. 348

DAILEY et al. v. STATE.

Supreme Court of Ohio.

May 21, 1894

Error to circuit court, Portage county.

R. J Dailey and others were convicted of malicious mischief, and bring error. Affirmed.

At the September term, 1892, of the court of common pleas of Portage county, the plaintiffs in error, R. J. Dailey, William Donahue, Edward Lingle and S.W. Kennedy, were tried upon an indictment which charged that on the 22d of September, 1892 they ‘ wrongfully, unlawfully, and without lawful authority did injure eight maple trees, the property of one E. E. Taylor, standing and growing upon land not that of said R. J. Dailey, William Donahue, Edward Lingle, and S.W Kennedy, nor of each, either, nor of any of them, by cutting and severing from said trees, and from each and all of them certain limbs and branches belonging thereto, and by otherwise injuring and defacing each and all of said trees and the bark thereof, contrary to the form of the statute,’ etc. The record shows that E. E. Taylor owned lands adjoining and to the center of a public highway. The road was about 66 feet in width, and had been established for over 50 years. His frontage was about one-third of a mile. The trees, some 60 in number, were planted by Mr. Taylor about 40 years since, chiefly inside of the fence which was on the line of the highway. In the year 1882, a telegraph company, without obtaining consent of Mr. Taylor, or in any way appropriating a right to do so, erected its line upon the highway in front of his premises, placing the poles from 12 to 16 feet from the fence line. The poles were about 130 feet apart, and on them were festened cross arms 6 feet in length upon which were stretched 14 wires. The defendants (now plaintiffs in error) were employés of the Postal Telegraph Cable Company, and acted under orders from the company in cutting the trees. At the time of the occurrence, Mr. Taylor objected, telling the men that the trees were his, as the owner of adjoining lands; that they had no right to cut them; and ordered them to desist. They replied that the branches interfered with the working of the line; that they had been directed to trim, and would do so. The trimming marred the symmetry of the trees, tended to make them one-sided, and injured them. The Postal Telegraph Cable Company, which now operates the line, is a corporation, organized under the laws of the state of New York in the year 1886, having lines extending through many of the states, and into Canada. On March 17, 1886, the company filed with the postmaster general of the United States its acceptance, by resolution duly adopted, of the requirements of section 5263 et seq. of the Revised Statutes of the United States, and of all the restrictions and obligations required by law, in order to make its line an instrument of interstate commerce. When the company took possession of this line does not appear. The defendants were found guilty. Sentence followed, which, upon error to the circuit court, was affirmed. To reverse these judgments, the present proceeding in error is brought.

The fact that a landowner did not, when a telegraph line was built, prevent the construction, will not estop him, after 10 years, from asserting his interest in trees in front of his premises, when injured by the telegraph company.

Syllabus by the Court

1. An owner of land adjoining a public highway, whose title extends to the center of the road, who has cultivated shade trees, planted partly on his own land and partly in the line of the highway, within the bounds of his deed, has a property interest in such trees, and the right to their enjoyment, subject only to the convenience of public travel.

2. The legislature may authorize the construction of a telegraph line by a telegraph company upon a public highway, in such manner as not to incommode the public in the use of such highway; but authority so given does not empower such company to injure the property of an adjoining landowner, nor to appropriate any of his property rights in the highway, except upon the condition that compensation be first made; nor is warrant given to injure such property, nor to appropriate such property rights, without compensation, by the act of congress of July 24, 1866, known as section 5263 et seq. of the Revised Statutes of the United States.

3. The property right of such owner in trees thus cultivated by him is a proper subject of legislation for its protection, and one who, having knowledge of the rights of such landowner in the trees, proceeds, against the protest of such owner, heedlessly, recklessly, and carelessly to injure them, may be prosecuted, under section 6880 of the Revised Statutes, for a wrongful injury to property.

4. The simple fact that the landowner did not, at the time the telegraph line was built, although aware of the purpose to build, object and prevent its construction by injunction proceedings, will not estop him, after the expiration of 10 years from the date of such construction, from asserting his property interest in the highway and in the trees growing upon and in front of his premises.

Wolf & Moore and I. T. Siddall, for plaintiffs in error.

E. T. Hanselman, Pros. Atty., for the State.

SPEAR, J. (after stating the facts).

The conviction was had under section 6880 of the Revised Statutes, which provides that ‘ whoever wrongfully, and without lawful authority, cuts down or destroys, or by girdling, or any other means, injures any vine, bush, shrub, sapling, or tree, standing or growing upon land not his own, or severs from the land of another, or injures, or destroys, any product standing or growing thereon, or other thing attached thereto, shall be fined in any sum not more than one hundred and fifty dollars, or imprisoned not more than thirty days, or both.’

Objection was made at the trial to the admission of any evidence under the indictment. Exceptions were also taken to the refusal to charge divers propositions tendered by counsel for defendants. But the principal question in the case is raised by the exception to the following instruction, given by the court to the jury, viz.: ‘ Upon the question as to the rights of the telegraph company, the court says to you that at the time of the erection of the poles and the construction of the telegraph line, whether in 1882 or 1884, the land upon which this highway was situated was the property of Mr. Taylor, subject to the right of way for public use for highway; that is, for travel and keeping it in repair as a highway. As between Mr. Taylor and other individuals or corporations, it could be used for no other purpose without entitling him to compensation for such use; and the entry of this telegraph company upon his land without compensation to him, or without an agreement between him and such corporation, if you find this corporation did so enter, was not a rightful entry or occupancy; and as to the trees growing upon this land at the time such company constructed its lines, as between him and such corporation, he had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company. The United States could not nor has it attempted to take away by any statute that right. Mr. Taylor's right to maintain the trees in the ordinary way was an absolute right, and this right could be taken from him in no way until such time as they acquired the right to maintain such lines by prescription, which means actual occupancy for 21 years or more, or by appropriation or agreement; and for this company, by its agents, without first acquiring the right, to enter upon this land, and to cut the trees growing thereon, would be proceeding without lawful authority.’ If this instruction is wrong, the conviction cannot stand. It is maintained by the plaintiffs in error that the charge is erroneous because the Postal Telegraph Cable Company derived authority by force of section 3454 et seq. of the Revised Statutes of Ohio, and of section 5263 et seq. of the Revised Statutes of the United States (by which its line is made an instrument of interstate commerce), to enter upon and occupy the highway for its telegraph line, and was therefore rightfully there for the purposes of its business; and that, as it appears that what was done by the employés of the company in the way of trimming the trees of Mr. Taylor was done to prevent the branches from interfering with the operating of the telegraph line, their acts could not be in violation of any right of Mr. Taylor, inasmuch as he could not be possessed of any right to intrude, by growing trees or otherwise, upon the right of occupancy and use thus acquired and enjoyed by the company. Such acts would not be, within the meaning of our criminal statute, wrongful; nor could the land, as respects the company thus rightfully in occupancy of the highway, be esteemed the land of another, within the meaning of section 6880. The sections of the Ohio Statutes cited give authority to any magnetic telegraph company to construct telegraph lines from point to point along and upon any of the public roads and highways, etc., but the same shall not incommode the public in the use of such highway. Any such company may enter upon any land, whether held by an individual or a corporation, and whether acquired by purchase or by appropriation, for the purpose of making preliminary examinations and surveys, with the view to the location of lines of magnetic telegraph, and may appropriate so much thereof as may be deemed necessary for the erection and maintenance of its poles, piers, abutments, wires, and other necessary fixtures, and for stations, and the right of way over such lands and adjacent lands sufficient to...