Frazier v. East Tenn. Telephone Co.

• Decision Date: 20 January 1906
• Parties: FRAZIER et ux. v. EAST TENNESSEE TELEPHONE CO.
• Court: Tennessee Supreme Court

90 S.W. 620

115 Tenn. 416

FRAZIER et ux. v. EAST TENNESSEE TELEPHONE CO.

Supreme Court of Tennessee.

January 20, 1906

Appeal from Chancery Court, Hamilton County; D. L. Lansden Chancellor.

Action by S. J. A. Frazier and wife against the East Tennessee Telephone Company. Decree for complainants, and defendant appeals. Reversed.

The question to be determined in this case arises upon the following statement of facts, which we adopt from the findings of the Court of Chancery Appeals, viz.:

"Some 20 or more years ago complainants, husband and wife, bought a tract of some 70 acres of land on the north side of the Tennessee river opposite Chattanooga. The title to this land was taken in them jointly. They platted a portion of this land into blocks, streets, and alleys, and called the land so platted and divided into streets, 'Frazier Addition.'

"This plat was made a matter of public record.

"Two of the main streets in said addition are called and known as Forest avenue and Frazier avenue.

"Complainants sold some lots in said addition with reference to its streets, and they built a residence for themselves abutting on Frazier avenue, in which they have lived.

"The defendant is a telephone company, chartered under the laws of Kentucky, and organized to furnish telephone service to the public. It has, and has had, for years, a telephone exchange in Chattanooga, and through and by the use of its equipment it gives local and long distance telephone service to the public. As a means of furnishing this service, it erects poles planted in the ground, to which it attaches wires reaching the points and patrons calling for its service.

"Some years ago, but after complainants platted their land as aforesaid, the county of Hamilton, in which is situate Chattanooga, constructed a bridge across the Tennessee river for the use of the public.

"The northern terminus of this bridge, or its northern end, extends, after crossing the bed of the river, some distance up Forest avenue. This location of said end of the bridge on a part of said avenue was with the assent of complainants.

"As this bridge blocked to a great extent the south end of said avenue for the distance it extends along it, complainants widened said avenue along the east side of the bridge, so as to allow free access to the river, and to their bottom land immediately adjacent to the river at that point.

"The defendant, with its wires, crossed the river along said bridge, and, on reaching the north bank of the river, erected its poles on the passageway opened as aforesaid by complainants on the east side of said bridge and strung its wires thereon.

"It also erected its poles and strung its wires along or on Forest and Frazier avenues to reach and serve its patrons on that side of the river.

"The poles thus erected by it had crossarms fastened to them, to which its wires were attached, and some of them were braced by stay poles.

"The complainants, in platting their land into lots, streets, etc., retained the fee to the land covered by the streets, and simply dedicated them to the public use as an easement way of travel.

"Under the evidence in the record, the defendant planted its telephone poles along Frazier and Forest avenues and attached its telephone wires to cross-arms fastened to said poles, and used and is using them in the operation of its business."

Section 1830 of Shannon's Code provides, among other things, that telephone companies may construct and maintain lines over the public highways and streets of the state.

Watkins & Thompson and W. L. Granberry, for appellant.

Burkett, Miller & Mansfield, for appellees.

NEIL, J. (after stating the facts).

The question arising on the foregoing facts is whether telephone poles and wires constitute an additional burden upon complainants' fee for which they are entitled to compensation.

In support of the liability, the following cases and text writers are cited by complainants' counsel, viz.: Eels v. Tel. Co., 143 N.Y. 133, 38 N.E. 202, 25 L. R. A. 640; Tel. Co. v. Barnett, 107 Ill. 507, 47 Am. Rep. 453; Tel. Co. v. Eaton, 170 Ill. 513, 49 N.E. 365, 39 L. R. A. 722, 62 Am. St. Rep. 390; Daily v. State, 51 Ohio St. 348, 37 N.E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Callen v. Electric Light Co., 66 Ohio St. 166, 64 N.E. 141, 58 L. R. A. 782; Tel. Co. v. Williams, 86 Va. 696, 11 S.E. 106, 8 L. R. A. 429, 19 Am. St. Rep. 908; Krueger v. Tel. Co., 106 Wis. 96, 81 N.W. 1041, 50 L. R. A. 298; Stowers v. Tel. Co., 68 Miss. 559, 9 So. 356, 12 L. R. A. 864, 24 Am. St. Rep. 290; Tel. Co. v. McKenzie, 74 Md. 36, 21 A. 690, 28 Am. St. Rep. 219; Nicoll v. Tel. Co., 62 N. J. Law, 733, 42 A. 583, 72 Am. St. Rep. 666; Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L. R. A. 775, 95 Am. St. Rep. 720, City of Spokane v. Colby, 16 Wash. 610, 48 P. 248; Bronson v. Tel. Co., 67 Neb.111, 93 N.W. 201, 60 L. R. A. 427; Pac. Postal Tel. Cable Co. v. Irvine (C. C.) 49 F. 113; Post. Tel. Cable Co. v. Sou. Ry. Co. (C. C.) 89 F. 190; Kester v. W. U. Tel. Co. (C. C.) 108 F. 926; Joyce on Electrical Law, § 321; 2 Dill. Munic. Corp. (5th Ed.) § 698a; Elliott on Roads & Streets, 534; Lewis on Eminent Domain, § 131; Croswell on El. § 110; Randolph on Em. Domain, § 407.

For the defendant the following authorities are cited, viz.: McCann v. Tel. Co., 69 Kan. 210, 76 P. 870, 66 L. R. A. 171; Magee v. Overshiner, 150 Ind. 127, 49 N.E. 951, 40 L. R. A. 370, 65 Am. St. Rep. 358; Coburn v. New Tel. Co. (Ind.) 59 N.E. 324, 52 L. R. A. 671; Irwin v. Great Sou. Tel. Co., 37 La. Ann. 63; Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7; People v. Eaton, 100 Mich. 208, 59 N.W. 145, 24 L. R. A. 721; Cater v. N.W. Tel. Co. (Minn.) 63 N.W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543; Julia B. & L. Ass'n, v. Bell Tel. Co., 88 Mo. 258, 57 Am. Rep. 398; Hershfield v. Rocky Mt. Tel. Co., 12 Mont. 102, 29 P. 883; York Tel. Co. v. Keesey, 5 Pa. Dist. R. 366; Lockhart v. Craig St. Railroad, 139 Pa. 419, 21 A. 26; Kirby v. Citizens' Tel. Co. (S. D.) 97 N.W. 3; Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; Cumberland T. & T. Co. v. Avritt (Ky.) 85 S.W. 204; Lowther v. Bridgeman (W. Va.) 50 S.E. 410.

Some other cases upon both sides of the question may be found in the citations contained in the opinions of the judges in the cases above referred to, and in the footnotes, and also in the notes to 27 Am. & Eng. Encyc. Law, pp. 1008, 1009; but in those which we have cited will be found a full and satisfactory presentation of every consideration properly entering into the inquiry.

It is obvious upon a mere casual inspection, even, that the numerical weight of authority supports the complainants' contention. The question is to be determined, however, not by numbers merely, but upon what shall appear to us the best reasons.

The case is of first impression here. It has been held by this court that steam railways, both the ordinary commercial ( Railroad v. Bingham, 87 Tenn. 522, 11 S.W. 705; Smith v. Railroad, 87 Tenn. 633, 11 S.W. 709) and dummy lines (Street Ry. Co. v. Doyle, 88 Tenn. 747, 13 S.W. 936, 9 L. R. A. 100, 17 Am. St. Rep. 933), constitute an additional burden, but that street-railways (Smith v. Street R. R., 87 Tenn. 626, 11 S.W. 709; Telegraph & Telephone Co. v. Elec. Ry. Co., 93 Tenn. 492, 503, 29 S.W. 104) do not; and it is held generally in the courts of the country that electric light poles and wires, gas pipes, and lamp posts for highway purposes, sewer pipes, and water pipes, do not.

On one side, the theory is that a proper street purpose can only be something connected with the use of the street as a passway for moving objects, people, animals, and vehicles, or with the...