Forsythe v. Baltimore & Ohio Tel. Co.

• Decision Date: 27 July 1882
• Citation: 12 Mo.App. 494
• Parties: WILLIAM FORSYTHE, TRUSTEE, ET AL., Respondents, v. BALTIMORE & OHIO TELEGRAPH COMPANY, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 494

WILLIAM FORSYTHE, TRUSTEE, ET AL., Respondents,

v.BALTIMORE & OHIO TELEGRAPH COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jul. 27, 1882.

1. The right to erect telegraph poles in the streets of a city does not carry with it the right to erect broken and unsightly poles.

2. The discretion reposed in the board of public improvements will not be revised if exercised within the limits of the power conferred by the legislature.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

G. POLLARD, for the appellant.

F. J. BOWMAN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This case presents substantially the same questions as those presented in the case of Gay v. Mutual Union TelegraphCompany (12 Mo.App. 485) The circuit court enjoined the defendant, a telegraph company, from erecting a telegraph pole on the southwest corner of Second and Chestnut streets in St. Louis. The original dimensions of the pole were about forty-five feet in length, and fifteen inches in diameter at the point where it enters the surface of the sidewalk. The defendants, having obtained authority from the board of public improvements to run their telegraph line from Chouteau Avenue along the west side of Second Street to Pine Street, proceeded to put up the pole in question. It was sawed down by some one, and, in falling, the top broke off, and it became cracked and split so as to be unsightly and perhaps dangerous. Nevertheless the defendants attempted afterwards to put up the broken pole, and the injunction restrains them from so doing.

It appears that the pole, if erectcd, leaves a passage-way of four feet and three inches between it and the plaintiff's building. This building stands two feet further into the sidewalk than the adjacent buildings, though it is placed on the line of the plaintiff's lot. It would seem that the contiguous property-owners, in order to enlarge the sidewalk, have erected their buildings two feet inside the line of the street. The plaintiff is the owner of the fee, but there is no evidence of any injury to the fee. See O'Linda v. Lothrop, 21 Pick. 292; Atlantic, etc., R. Co. v. St. Louis, 66 Mo. 259. The only injury claimed is an injury to the easement--an obstruction to travel.

The evidence does not satisfy us that any substantial damages will accrue to the plaintiff from the erection of a good and shapely pole in the place and of the dimensions of this pole before it was broken. It is shown that there is more room for the erection of a...