East Tennessee Telephone Co. v. Anderson County Telephone Co.

• Decision Date: 05 May 1903
• Citation: 74 S.W. 218,115 Ky. 488
• Parties: EAST TENNESSEE TEL. CO. et al. v. ANDERSON COUNTY TEL. CO.
• Court: Kentucky Court of Appeals

74 S.W. 218

115 Ky. 488

EAST TENNESSEE TEL. CO. et al. v. ANDERSON COUNTY TEL. CO.

Court of Appeals of Kentucky.

May 5, 1903

Appeal from Circuit Court, Anderson County.

"To be officially reported."

Action by the Anderson County Telephone Company against the East Tennessee Telephone Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

F. R Feland and Humphrey, Burnett & Humphrey, for appellants.

Willis & Willis and L. C. Carter, for appellee.

BURNAM C.J.

On the 10th day of August, 1899, the East Tennessee Telephone Company sued out an injunction against the Anderson County Telephone Company, and enjoined them from "erecting poles, posts, and other apparatus preparatory to or necessary to be used in the operation of a telephone exchange along over, under or across the public streets, alleys, or public ways of Lawrenceburg," upon the ground that by the contract with the city of Lawrenceburg they had an exclusive franchise to establish and operate a telephone system therein. The Anderson County Company defended this suit upon the ground that the ordinance adopted by the city council granting the franchise to the plaintiff did not lie over five days, as required by section 3636 of the Kentucky Statutes and was, therefore, void. This contention was sustained, and the East Tennessee Telephone Company's petition dismissed. See East Tennessee Telephone Co. v. Anderson Tel. Co. (Ky.) 57 S.W. 457. Thereupon the Anderson County Company brought this suit for damages on the injunction bond executed by the East Tennessee Telephone Company at the institution of their suit. In the first paragraph of their petition they allege "that they had authority to construct and operate a telephone line and exchange in the city of Lawrenceburg." This allegation is specifically denied in the answer, and the defendant pleads affirmatively that the plaintiff did not, before proceeding to erect their poles in the public streets and alleys of the city for the purpose of conducting a telephone business, obtain and procure any consent of the city authorities to do so. A motion by the plaintiff to strike this allegation from the answer was overruled, and in their reply they admit this averment to be true, but allege that the city authorities made no objection to their doing so, and aver that this was no concern of the defendant, and that it had no right to rely upon the absence of such authority. The defendant moved to strike out so much of the reply as pleaded that they could not rely upon plaintiff's want of authority. This motion was also overruled, and the issues were made up by controverting the affirmative averments of the reply. The trial resulted in a judgment in favor of the plaintiff for $2,000, and the defendant has appealed.

Section 163 of the Constitution is as follows: "No telephone company shall be permitted or authorized to construct its tracks, lay its pipes, or mains, or erect its poles, posts or other apparatus along, over under or across the streets alleys or public grounds of a city or town, without the consent of the proper legislative bodies or boards of such city or town being first obtained; but when charters have been heretofore granted conferring such rights, and work had in good faith been begun thereunder, the provisions of this section shall not apply." This section of the Constitution is mandatory, and highly important, and, as the Anderson Telephone Company failed to comply with its provisions or the statute passed pursuant thereto, it is clear that they had no right to use the streets or highways of the city of Lawrenceburg for the conduct of their business. The question, then, arises whether they can recover damages against the East Tennessee Telephone Company because that company, by injunction, prevented them from doing an unlawful thing. The gist of the plaintiff's complaint is that they were prevented by an injunction sued out by defendant from exercising a lawful right. If they were violating the law in erecting their poles and wires upon the streets of Lawrenceburg without authority of the city authorities, the presumption is that they would have been stopped by these authorities in due course. The question raised by the defense is a new one in this state, although manifestly sound and logical on principle. And we have been cited by counsel for appellant to a number of cases which fully sustain their contention. In Bangor, etc., R. R Co. v. Smith, 77 Am.Dec. 246, the railroad company undertook to construct a branch track of their railroad over a public highway in Oldtown. The defendant, with others, denied the right of the plaintiffs to construct the branch track as claimed by them, and interfered and prevented it. After this interference the railroad company brought suit, setting forth their right to construct such track, and that by the acts of the defendant they were prevented from constructing it. When this case was brought to the Supreme Court of Maine, it was held that plaintiffs did not have legal authority to construct their track in the way and manner...