Granger Tel. & Tel. Co. v. Sloane Bros.

• Decision Date: 18 May 1917
• Docket Number: 13718.
• Citation: 165 P. 102,96 Wash. 333
• Court: Washington Supreme Court
• Parties: GRANGER TELEPHONE & TELEGRAPH CO. v. SLOANE BROS., Inc.

165 P. 102

96 Wash. 333

GRANGER TELEPHONE & TELEGRAPH CO. v. SLOANE BROS., Inc.

No. 13718.

Supreme Court of Washington

May 18, 1917

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by the Granger Telephone & Telegraph Company against Sloane Bros., Incorporated. Judgment for defendant, and plaintiff appeals. Affirmed.

B. L Hubbell, of Kelso, for appellant.

Turner Hartge & Turner, of Seattle, for respondent.

MOUNT J.

The facts in this case are not in dispute. They may be briefly stated as follows: The appellant had a general franchise from Wahkiakum county to erect and maintain telephone and telegraph lines on the county roads of that county. Appellant erected certain telephone lines over one of the county roads by setting poles in the highway and placing thereon its telephone and telegraph lines. After this had been done, the county decided to improve the highway, and did so, by letting a contract to the respondent to do the work. The respondent, under the direction of the county engineer, as provided for in the contract, and without any negligence, proceeded to improve the road in accordance with the county plan. In doing this work some of the appellant's telephone poles were caused to fall by necessary excavations. The appellant, in order to replace the poles, expended the sum of $711.34. The appellant then brought this action to recover damages in that sum from the contractor. Upon these facts the trial court denied a recovery, and the plaintiff has appealed.

The appellant argues that its property was placed upon the highway where it had a right to be; that, under the provisions of section 16 of article 1 of the Constitution, which provides that no private property shall be taken or damaged for public or private use without just compensation having been made, it is entitled to recover in this action. The argument proceeds upon the theory that, being rightfully in the highway with its telephone poles, the county had no right to damage these poles without just compensation being made therefor. It is true that the appellant had a right in the highway, by reason of the franchise, but that right is necessarily a qualified right. It cannot be reasonably argued that the county authorities may grant the right to a public service corporation to occupy a highway to the exclusion of the public, or the exclusion of the right of the county authorities to improve the highway so that it may be used by the public. A franchise granted upon a highway such as this would necessarily be qualified by these rights. Where the right is such qualified right, it follows that the county authorities, in the discharge of their duties to control the highway, may keep it in reasonable condition for ordinary use by the public, and the damage which necessarily follows to a licensee from an improvement of the highway would not be a taking or damaging of property within the meaning of the constitutional provision above quoted. The rule is stated in 13 R. C. L. at section 82 as follows:

'It is almost uniformly held that a gas or water company laying its mains and service pipes under the streets of s municipality acquires

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