Hershfield v. Rocky Mountain Bell Tel. Co.
| Decision Date | 02 May 1892 |
| Citation | 29 P. 883,12 Mont. 102 |
| Parties | HERSHFIELD et al. v. ROCKY MOUNTAIN BELL TEL. CO. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; WILLIAM H HUNT, Judge.
Action by L. H. Hershfield and others against the Rocky Mountain Bell Telephone Company. Judgment for defendant. Plaintiffs appeal. Affirmed.
McConnell & Clayberg, for appellants.
McCutcheon & McIntire, for respondent.
Appellants brought this action "on their own behalf, and on behalf of others similarly situated," to obtain an injunction permanently restraining respondent from erecting a certain telephone pole at the place herein after described, in the city of Helena. Respondent demurred to the complaint on the ground that the plaintiffs failed to allege therein facts sufficient to constitute a cause of action, which demurrer was, upon hearing and consideration, sustained, and the temporary injunction dissolved. Plaintiffs elected to rest upon their complaint without amendment, and judgment was therefore entered in favor of defendant, from which plaintiffs appeal, assigning error in sustaining said demurrer, and contend that sufficient facts are alleged to constitute a cause of action. The facts sufficient for the discussion of the points considered on this appeal, as found in the complaint, are alleged substantially as follows: That defendant is a corporation organized and existing under the laws of the territory of Utah, and is doing business in the city of Helena, county of Lewis and Clarke, and elsewhere in this state; that said city, by ordinance No. 187, a copy of which is annexed to plaintiffs' complaint as a part thereof, granted to defendant for the term of 20 years the right to erect and maintain poles and wires, with the arms and braces necessary thereto, over and above the streets avenues, alleys, and public grounds of said city, necessary to establish and operate a telephone service therein; that under the privilege granted by said ordinance, respondent has, by means of poles and wires, established, and is operating, a telephone service in said city. Said ordinance, in addition to said grant, provides that all of the rights hereby granted to be subject to such terms and conditions as the city council of the said city may from time to time prescribe, and expressly reserving the right to require the said company to place its wires under ground if the city shall at any time require: provided, that said company shall at all times, when so requested by the city authorities, permit their poles and fixtures to be used for the purpose of placing and maintaining thereon any wires which may be necessary for the police and fire departments of said city." Plaintiffs further allege that they are the owners of lot 7, in block numbered 30, in the original town site of the said city of Helena, being about 35 feet front on Main street, and 117 feet deep, bounded on the east by Main street, and on the south by Edwards street, upon which lot appellants have erected a large four-story building, fronting on said Main and Edwards streets, which building is used as a business block for the purpose of banking and offices; that, prior to the entry of said town site of the city of Helena, the predecessors of plaintiffs in interest in said premises were inhabitants of said city, and occupied and possessed said premises as the owners thereof, against all others except the United States of America; that as such occupants, possessors, and owners they established and laid out in front of said premises a street designated as "Main Street," also another designated "Edwards Street," for the ordinary use and purpose of streets and highways; that while the said premises were so occupied and possessed by the predecessors in interest of the plaintiffs, and while said streets were so laid out, established, and used, the probate judge, acting as county judge of the county of Lewis and Clarke, as by law provided, did in the year 1869 enter and acquire title to the said land in question, among other lands, from the government of the United States, as the town site of said city of Helena, in trust, for the use of the inhabitants of said city; "that thereafter the said probate judge, in discharge of his trust in that behalf, conveyed the premises herein before described to the predecessors in interest of these plaintiffs, describing the same as bounded by said Main and Edwards streets, who in like manner conveyed the same to plaintiffs and their grantors; by reason whereof these plaintiffs became and are the owners of the fee in said premises, and to the center of said Main and Edwards streets, subject to the ordinary use and purpose thereof as streets and highways;" that since the entry of said town site for the use of the inhabitants of said city, "and while the predecessors in interest of these plaintiffs were so the owners, seised and possessed of the premises aforesaid, they cut off from their said lot ten feet in front thereof and adjacent to said Main street, for the sole purpose of allowing the same to be used as a street and highway, for the purposes of travel, and for the convenience and benefit of their said property, and not to the injury and detriment thereof;" that the same has ever since been solely and exclusively used for such purpose up to the time of the attempted erection of the poles, wires, and branches by the said defendants, under the pretended rights secured to it by the franchise hereinbefore set forth; that under such pretended authority granted by said ordinance defendant has commenced the digging of a hole for the planting of a pole in the edge of the side walk immediately in front of plaintiffs' premises aforesaid, upon said Main street, and within said 10 feet cut off by appellants from their said lot for street purposes, as aforesaid; that respondent instituted no condemnation proceedings under the laws of eminent domain of this state, whereby to obtain the right to use said land for the purpose of erecting said pole thereon; that said acts of respondent upon said land are in violation of the rights of appellants as the owners in fee thereof; that the height of said pole is 45 feet, and arms and braces are to be attached to it, and a large number of wires are to be strung thereon, over and above said street, and immediately in front of said building of appellants, and within 10 feet thereof; that the erection of said pole and arms and wires would be an injury to the freehold of appellants; that, for a period of two years last past, defendant has maintained a pole on the other side of
Edwards street, opposite the point where the one in question is to be placed, which defendant proposes now to discontinue; "that, as plaintiffs are informed and believe, said pole (as formerly placed) is at a proper and convenient place for said company, and is sufficient to carry and maintain all necessary wires of said company;" that there is no necessity for changing the site of said pole as proposed, but that all business of defendant can be as conveniently conducted with said pole at the former place.
There are no allegations in the complaint showing that in the proposed planting of said pole at the place described respondent had located the same contrary to the permission obtained from the city authorities; nor that by the arrangement of the poles set up by respondent under such permission there has been discrimination against appellants by way of locating the pole in question in such a position as to work an unnecessary disadvantage or inconvenience to the use of plaintiffs' property; nor that the same might be located in a different position in front of their lot, with less inconvenience to them in the use of their property and to the public, and at the same time answer all necessary purposes of defendant in establishing and operating said telephone service. In short, there are no facts alleged showing a peculiar or unnecessary or greater inconvenience to plaintiffs or their property by the erection of said pole at the place proposed than results to others in like situation as to poles planted on said street. There is no doubt, considering the nature of the matter under discussion, that a system of poles could be so arranged along the street as to answer the necessity of respondent's business, and avoid placing one in the street in front of plaintiffs' lot, by placing the necessary poles in front of other lots. The allegations of the complaint bring to the court the general proposition as to whether defendant may, under the authority granted by said city, erect the necessary appliances for a telephone service in the streets along the front of plaintiffs' lot, without any peculiar, unnecessary, or greater inconvenience to plaintiffs at that place than to others in front of whose lot a pole is erected.
Appellants contend that they have alleged facts showing that they own the freehold estate not only in their said lot, but also to the center of the said streets adjoining; but, apparently conceding that they can recede somewhat from this proposition, they contend that, if that is not sustained they still have shown that they own the fee in that portion of the street where said pole is about to be erected,...
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