Hildebrand v. Southern Bell Tel-ephone & Tel. Co, 101.

• Decision Date: 16 April 1941
• Docket Number: No. 101.,101.
• Citation: 14 S.E.2d 252,219 N.C. 402
• Court: North Carolina Supreme Court
• Parties: HILDEBRAND. v. SOUTHERN BELL TEL-EPHONE & TELEGRAPH CO.

14 S.E.2d 252

219 N.C. 402

HILDEBRAND.

v.SOUTHERN BELL TEL-EPHONE & TELEGRAPH CO.

No. 101.

Supreme Court of North Carolina.

April 16, 1941.

Appeal from Superior Court, Buncombe County; Frank M. Armstrong, Judge.

Action by Eleanor G. Hildebrand against the Southern Bell Telephone & Telegraph Company to restrain a trespass and recover damages therefor. From the judgment, both parties appeal.

Affirmed.

See, also, 216 N.C. 235, 4 S.E.2d 439.

Civil action instituted in the General County Court of Buncombe County to restrain the defendant from trespassing upon lands of the plaintiff and to recover damages alleged to have been sustained by the wrongful construction by the defendant of a telephone line along and over plaintiff's land.

Plaintiff owns certain land in Buncombe County which is subject to the right of way easement of State Highway No. 70-74, commonly designated as a U. S. highway. On or about August 2, 1938, defendant began the construction of a telephone line along and upon the right of way of said highway. In so doing it dug holes and erected poles and wires upon the land of plaintiff lying within the right of way. Prior to beginning the construction of said line the defendant procured the consent of the State Highway Commission and of the Board of Commissioners of Buncombe County. Plaintiff instituted this action to restrain the defendant and to recover damages for the trespass upon her land.

When the cause came on to be heard in the General County Court, issues were submitted to and answered by the jury in favor of the plaintiff, permanent compensatory damages being assessed. From judgment on the verdict defendant, assigning error, appealed to the Superior Court.

Upon hearing the appeal in the court below numerous assignments of error were overruled and certain other assignments were sustained. The court, having found error in the trial in the General County Court, entered judgment remanding the cause for a new trial. Both plaintiff and defendant excepted and appealed.

Sarrford W. Brown and J. W. Haynes, both of Asheville, for plaintiff.

J. G. Merrimon, of Asheville, for defendant.

BARNHILL, Justice.

Defendant's primary assignment of error is directed to the refusal of the court below to sustain its exception to the order of the General County Court denying its motion for judgment as of nonsuit. It stress fully contends that the State Highway Commission is vested with absolute control of all land within the right of way of a public highway of the State and that such right of way is acquired by the State not only for the ordinary mode of travel but for any and all other modes of communicating intelligence between points connected by the highways. It asserts, therefore, that when it obtained consent from the Board of Commissioners of Buncombe County and the written assent of the State Highway Commission it was authorized to construct its telephone line on and along the right of way and that in so doing it im posed no new or additional burden upon the land of the plaintiff.

Thus this exception presents this question: Is communication by telephone or telegraph "a mode of travel", so that the construction and maintenance of a telephone line along and upon the right of way of a public highway imposes no new or additional burden upon the fee--that is, does compensation for an easement for highway purposes include compensation for use of telephone and telegraph poles and lines in furtherance of the business of a public service corporation?

Whether a telegraph or telephone line can be erected and maintained upon a public street without compensation to the owner of a fee is a question upon which there is a direct conflict of authority. On the one side, it is said that a telegraph or telephone line is but an improved method of subjecting highways to an old use, and that the poles and wires are just as necessary adjuncts to this new method as are the poles and wires of a street railway or an electric light plant. Accordingly, many authorities are to the effect that the poles and wires of a telegraph or telephone line are not an additional servitude upon a public highway upon the theory that a message sent along the wires takes the place of a messenger and thus relieves the highway of much of the use to which it would otherwise be subjected. On the other hand, it is argued that the use of highways for the permanent maintenance of poles and wires occupying a portion of the highway easement is a use not contemplated in the laying out and construction of highways generally. In the jurisdictions thus holding it is the rule that a telegraph or telephone line is an additional servitude upon the highway. In some jurisdictions a distinction is made between the use of city streets and county roads for such lines. We are interested here only in the suburban highway.

"Highway" means a way open to all the people without distinction for passage and repassage at their pleasure. 29 C.J. 364; a public way or road; a public way open and free to anyone who has occasion to pass along it on foot or with any kind of vehicle; Atlanta, etc., R. Co. v. Atlanta, etc., R. Co., 125 Ga. 529, 54 S.E. 736; a thoroughfare in which the public has a right of way for passage; Parsons v. San Francisco, 23 Cal. 462; a roadmaintained at public expense and kept open to the travel of the public. State v. Purify, 86 N.C. 681; Kennedy v. Williams, 87 N.C. 6.

A highway is a way open to the public at large for travel or transportation, without distinction, discrimination or restriction except such as is incident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. It is the right of travel by all the world and not the exercise of the right that constitutes a way a public highway, and the actual amount of travel upon it is not material. 25 Am.Jur. 339, sec. 2.

An easement acquired for use as a public highway is acquired for a public use but not for all public uses. The use is limited to the right of the public generally to pass and repass, to travel on foot or with any kind of vehicle. It is nothing more or less than a strip of land appropriated to a particular public use-- the facilitation of travel.

A telephone company is a public service corporation. It has the right to condemn property in furtherance of the purposes for which it was organized. The use of such property is a quasi public use. This public use is likewise limited. It is to facilitate the communication of intelligence and news. Godwin v. Tel. Co., 136 N.C. 258, 48 S.E. 636, 67 L.R.A. 251, 103 Am.St.Rep. 941, 1 Ann.Cas. 203; Chesapeake & P. Tel. Co. v. Baltimore & Ohio Teleg. Co., 66 Md. 399, 7 A. 809, 59 Am. Rep. 167.

There is a distinct difference between the two types of easements. The right of way for a highway is acquired and maintained by the governing authorities through the medium of taxation and it is dedicated to the use of all the public, while the right of way for a public service corporation is privately owned, is maintained for profit, and serves only those who are willing and able to pay the price.

Defendant contends, however, that communication by telephone is a modern method of travel constituting the use of the highway easement for a telephone line a legitimate use of the highway within "the public use" purposes for which the highway was established. We cannot so hold.

As highways are intended to facilitate travel, poles and wires of telegraph and telephone companies have no reference to this primary purpose of the highway. They are not contemplated in the original appropriation of land for highway purposes. They must be regarded, not as a legitimate highway use, but as a new use and as imposing an additional burden upon the highway. The use of such right of way by a telephone company to facilitate communication is subordinate to its use by the public for the primary purpose. Ganz v. Ohio Postal Teleg. Co., 6 Cir., 140 F. 692.

"The argument to support the proposition that the right to" construct and maintain a telephone line for common public use is within this easement is that the structures required for the exercise of the right are mere adaptations of the road to the passage of the electric current, which thus travels along the highway. But the resemblance between this use and that ordinarily enjoyed under the easement scarcely goes beneath the words by which it may be described. In reality, the electric current does not use the highway for passage, it uses the wire, and would be as well accommodated if the wire were placed in the fields or over the houses. The highway is used only as a standing place for the structures. Such a use seems to us to be so different from the primary right of passage as to be essentially distinct. * * * We therefore think that the right now under consideration is not within the public easement, and can be acquired, against the consent of the private owner of the fee, only by condemnation under the power of eminent domain". Nicoll v. New York, etc., Tel. Co, 62 N.J.L. 733, 42 A. 583, 584, 72 Am.St.Rep. 666; Plodges v. Western Union Tel.. Co, 133 N.C. 225, 45 S.E. 572; Eels v. American T. & T. Co, 143 N.Y. 133, 38 N.E. 202, 25 L.R.A. 640 (citing numerous authorities); Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775, 95 Am.St.Rep. 720; Cosgriff v. TriState Tel. & Teleg. Co, 15 N.D. 210, 107 N.W. 525, 5 L.R.A, N.S, 1142; Daily v. State of Ohio, 51 Ohio St. 348, 37 N.E. 710, 24 L.R.A. 724, 46 Am.St.Rep. 578; Western Union Tel. Co. v. Williams, 86 Va. 696, 11 S.E. 106, 8 L.R.A. 429, 19 Am.St.Rep. 908.

Connor, J., speaking for this court in Brown v. Electric Co, 138 N.C. 533, 51 S.E. 62, 65, 69 L.R.A. 635, 107 Am.St.Rep. 554, quoting the Supreme Court of Maryland in Chesapeake & P. Tel. Co. v. Mackenzie, 74 Md. 36, 21 A. 690, 28 Am.St.Rep. 219, says: "And...