Gay v. Mut. Union Tel. Co.

• Decision Date: 27 June 1882
• Citation: 12 Mo.App. 485
• Parties: EDWARD J. GAY, Respondent, v. MUTUAL UNION TELEGRAPH COMPANY, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 485

EDWARD J. GAY, Respondent,

v.MUTUAL UNION TELEGRAPH COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 27, 1882.

1. Under the statutes of the state and the charter and ordinances of the city of St. Louis, the erection of telegraph poles at the corner of Second and Pine Streets in the said city was not unlawful.

2. The commencement of the work without having first obtained authority from the board of public improvements is not ground for an injunction if such authority was subsequently given.

3. An appellate court cannot revise the discretion given the board of public improvements unless such discretion is so exercised as to be clearly subversive of private rights.

4. The erection of a telegraph pole so as to incommode the public gives an individual no right of action to abate the nuisance unless he has sustained special damage.

5. Inconvenience to the public from the erection of a telegraph pole cannot be reasonably avoided, and furnishes no ground for an injunction.

6. The inconvenience and injury to the individual must be such as would constitute a nuisance if it were not for a public use.

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

Reversed and remanded, with directions.

MCKEIGHAN & JONES, for the appellant: Telegraph poles erected on the streets by legislative and municipal authority are not nuisances.--2 Dill. on Mun. Corp., sect. 698; Lackland v. Railroad Co., 31 Mo. 180; Porter v. Railroad Co., 33 Mo. 128; Atlantic, etc., R. Co. v. St. Louis, 66 Mo. 228; Randle v. Railroad Co., 65 Mo. 325.F. J. BOWMAN, for the respondent.

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

The circuit court enjoined the defendant, a telegraph company, from erecting two telegraph poles in the outer edge of the sidewalk on the south side of Pine Street in the city of St. Louis, abutting the plaintiff's property. The grounds on which the injunction was asked were, that the attempted erections were unlawful, and that they would constitute a nuisance inflicting special damage on the plaintiff.

The facts which we take to be established by this record are, that the plaintiff is the owner of a high building, fronting eastward on Second Street, and extending westward along Pine Street a considerable distance, to an alley. Pine Street, like all the streets in what is called the old town, is narrow, and the sidewalk in which the defendant attempted to plant these poles is but six feet wide. The poles themselves are sixty-five feet in length, and are inserted into the ground seven feet, so that they are fifty-eight feet high above the surface of the street. They are from twenty to twenty-four inches in diameter at the surface of the ground, and, when planted in the sidewalk as the defendant proposes to plant them, they will obstruct about two feet of the passage-way, leaving about four feet for passage.

There was some evidence tending to show that one of the poles, if planted as the defendant was proceeding to do, would endanger an area wall, which prevented the water in a sewer from getting into the cellar of the defendant's building. But the petition does not ask that the injunction be granted on the ground that the work was being negligently done, but on the ground that the erections were unlawful and a nuisance per se. No objection was made, however, for variance; and we are, perhaps, entitled to consider the case as the parties have made it by their evidence, and not merely as it stands upon the issues made by their pleadings. But so considering it, we are of opinion that the evidence, which tends to show that the poles are a source of danger to the plaintiff's building, has been successfully rebutted. We are clear that the evidence does not make it appear sufficiently probable that the plaintiff is threatened with such injury as will warrant us in sustaining the decree granting an injunction on this ground. The fears expressed by the plaintiff's witnesses, that the vibrations of the pole may cause the area wall to crack, thus letting water from the sewer into the plaintiff's cellar, and that, by reason of its great height, it may be blown down in some unprecedented storm, are mere conjectures of problematical and contingent damage, which, we are satisfied from the evidence, is not likely to arise, but which, should it arise, and under such circumstances as would impute it to the negligence of the defendant, would afford ground for redress in an action at law for damages. 1 Thomp. on Neg. 568, and cases cited.

Confining ourselves, then, to the real questions, and the only ones which have been much discussed, we shall inquire: 1. Whether the erection of these poles was unlawful. 2. Whether they were a nuisance obstructing the highway and causing special damage to the plaintiff.

1. It is clear that the erections are not unlawful. The Revised Statutes contain the following provisions: “Companies organized under the provisions of this article, for the purpose of constructing and maintaining telephone or magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires, and other fixtures along and across any of the public roads, streets, and waters of this state, in such manner as not to incommode the public in the use of such roads, streets, and waters. Rev. Stats., sect. 879.

Such companies are also authorized to enter upon any land, whether owned by private persons in fee or in any less estate, or by any corporation, whether acquired by purchase or by virtue of any provision in the charter of such corporation, for the purpose of making preliminary surveys and examinations with a view to the erection of any telephone or telegraph lines, and, from time to time, to appropriate so much of said lands as may be necessary to erect such poles, piers, abutments, wires, and other necessary fixtures for a telephone or magnetic telegraph,” etc. Ibid., sect. 880.

“No telephone or telegraph company shall, by virtue of this article, be authorized to enter or appropriate any dwelling, barn, store, warehouse, or similar building erected for any agricultural, commercial, or manufacturing purposes, or to erect poles so near thereto as materially to inconvenience the owner in their use, or to occasion injury thereto.” Ibid., sect. 898.

The mayor and assembly of the city of St. Louis, by its charter, have power, by ordinance not inconsistent with the constitution or any law of this state, or of the city charter, “* * * to construct and keep in repair all bridges, streets, sewers, and drains, and to regulate the use thereof; * * * to license and tax * * * telegraph companies or corporations; * * * and finally, to pass all such ordinances, not inconsistent with the provisions of this charter or the laws of the state, as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trade, commerce, and manufactures,” etc. Rev. Stats., pp. 1587, 1588. The charter provides for the creation of a board of public improvements ( Ibid., p. 1590), and, after specifying some of its duties, provides that “the municipal assembly shall provide, by ordinance, such additional duties of, and requirements from the board of public improvements, and its several members, as it may deem necessary.” Ibid., p. 1597.

Acting under the powers thus granted, the municipal assembly of St. Louis, on the 25th of February, 1881, passed “an ordinance to regulate the erection of telegraph and telephone poles.” Its provisions, so far as material to the present controversy, are as follows:--

“SECTION 1. Any telegraph or telephone company duly incorporated according to law, doing business or desiring to do business in the city of St. Louis, is hereby authorized to set its poles, piers, abutments, wires, and other fixtures along and across any of the public roads, streets, and alleys of the city, subject to the regulations hereinafter provided.

SECT. 2. Whenever, in the judgment of the board of public improvements, the use of any alley for such purpose is practicable, the poles of such companies shall be placed upon and along said alley, instead of upon and along the street next adjoining and parallel thereto. Where the poles are set in any alley, they shall be located as near the side line of the alley as...