Hook v. Bowden
| Decision Date | 02 May 1910 |
| Citation | 128 S.W. 261,144 Mo.App. 331 |
| Parties | ED. A. HOOK, Appellant, v. C. P. BOWDEN et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Clair Circuit Court.--Hon. C. A. Denton, Judge.
AFFIRMED.
STATEMENT.--This is a contest between two rival telephone companies. The plaintiff, Ed. A. Hook, a citizen of Appleton City, St. Clair county, Missouri, was the owner at the time of the commencement of this suit of a telephone exchange in said city, furnishing telephone service therein and in the surrounding country. The right to the system which he was operating was granted to W. D. McComb on February 1, 1901 and purchased from him by plaintiff, and his rights in that system are unquestioned.
Prior to the institution of this suit, the mayor and council of Appleton City by an ordinance, numbered 64, purported to grant to C. P. Bowden and his assigns or successors the right to construct and operate another telephone system in the said city for a period of twenty years. This ordinance was approved July 2, 1908. It contained, among other conditions the following: "This ordinance and grant shall be void unless the said C. P. Bowden, his successors or assigns shall have said telephone exchange established and in operation within six months after its passage and ratification by the board of aldermen, and the said grantee filing his acceptance with the city clerk or board of aldermen, which said acceptance shall have the effect of a binding contract between the said city of Appleton City Missouri, and C. P. Bowden." Then follows: "Accepted this July 2d, 1908. C. P. Bowden." Said franchise would have expired by limitation on the 2d day of January, 1909.
Nothing was done by the respondents towards the construction of the telephone exchange until after the six months had expired, but at a meeting of the board of aldermen held on March 1, 1909, respondents filed the following petition:
Prior to the 18th day of April, 1909, the respondent Bowden and his associates purchased telephone poles, and about the 18th day of April, 1909, they commenced the erection of their system, put in a switch-board, some instruments, strung some wires, and at which time they had erected a telephone pole on Fourth street in said city. On the 19th day of April, 1909, the appellant served notice that he would apply for a restraining order to prevent the construction of said telephone plant. On the 20th day of April, an injunction was applied for and granted by the circuit court of St. Clair county, Missouri. The petition for the injunction stated, among other things, the facts herein-before set forth, and that the defendants were about to erect and build a telephone system in Appleton City and establish a switchboard, dig holes in the streets and alleys and set telephone poles therein, and string wires thereon in the various streets and alleys of Appleton City for the purpose of erecting and maintaining a telephone system therein; that "there was no necessity for said telephone system; that the streets and alleys were already occupied with telephone wires and poles by consent of the people of the city, and that if defendants were permitted to erect poles and string wires, it would greatly incommode the public in the use of the streets and alleys in said city and greatly interfere with and injure and damage the plaintiff in the use and operation of his telephone system, and that the unlawful acts of the defendants in erecting said poles would be an irreparable injury to the streets and alleys of said city and damage and interfere with plaintiff's telephone system; that the acts of the defendants were without any authority or consent of the city." Plaintiff prayed that the defendants be enjoined and restrained from erecting, building and placing their wires, poles and other fixtures in said city, and constructing the said telephone system.
As stated, a temporary injunction was granted. Upon a final hearing it was stipulated by the parties (the stipulation to be used as evidence) that the plaintiff, Ed. A. Hook, was a citizen of Appleton City, Missouri, and the owner of real and personal property located therein; that at the time of applying for the injunction, defendants intended to build and construct a telephone exchange and system in Appleton City and operate and run the same; that the defendants are a co-partnership in which their names are truly pleaded; that the system intended to be built by defendants, if constructed, would take from plaintiff a large part of the patronage enjoyed by him, and to that extent, injure his business; that the defendants intended to place poles and wires along the streets of Appleton City; that Appleton City was a city of the fourth class, organized as such under the laws of the State of Missouri.
Evidence was introduced tending to show that if the defendants' telephone system was constructed, it would probably necessitate the use of taller or shorter poles for the purpose of carrying the construction above or below the competitor, and would take subscribers from one system to the other, necessitate metallic service instead of ground service to prevent cross talk from one system to the other; that it would also require heavier construction if taller poles were used, and a cable would have to be installed in such a way as not to interfere with the competitor; that it would make the subscribers inaccessible, lessen the receipts, and other disadvantages; that the result upon the value of plaintiff's system would be a depreciation of from twenty-five hundred dollars to five thousand dollars.
Upon this final hearing, the court sustained a motion and discharged the injunction, from which the plaintiff has appealed.
Judgment affirmed.
W. E. Owen and John A. Gilbreath for appellant.
(1) The unauthorized setting of telephone poles and stringing wires and cables thereon is an obstruction of a public highway, and a private person has a right to enjoin such illegal obstruction, if he be damaged thereby differently than is the public at large, not merely in degree but kind. Heer D. G. Co. v. Railway, 41 Mo.App. 63; Gay v. Telephone Co., 12 Mo.App. 493; Cummings v. Ice Co., 156 Mo.App. 32; 3 Pomeroy Eq. Jur., sec. 1349; Wood on Nuisance, sec. 645; Dillon on Mun. Corp. (3 Ed.), secs. 660, 708; Carroll v. Campbell, 108 Mo. 558; Cauble v. Craig, 94 Mo.App. 675; Capital Cy. Ferry Co. v. Trans. Co., 65 Mo.App. 228. (2) The ordinance purporting to grant to C. P. Bowden a right to construct a telephone plant in Appleton City was never legally passed. R. S. 1899, sec. 5955; Water Co. v. Aurora, 129 Mo. 577; Barber Asphalt Co. v. Hunt, 100 Mo. 22; State ex rel. v. Mead, 71 Mo. 266. (3) Where the time limited by ordinance has expired, the board of aldermen cannot by ordinance extend the time for completing the work. Jones v. Paul, 136 Mo.App. 524; Neill v. Gates, 152 Mo. 585; Hund v. Rackliffe, 192 Mo. 312. (4) The consent for a telephone franchise to Bowden for twenty years could only be evidenced by ordinance duly passed. And it follows as a corollary that this right can only be renewed, revived or extended by act of the city of the same formality and character. Plattsburg v. Tel. Co., 88 Mo.App. 306; California v. Telephone Co., 112 Mo.App. 722; Aurora Water Co. v. Aurora, 129 Mo. 540; Saleno v. Neosho, 127 Mo. 627; Unionville v. Martin, 95 Mo.App. 35; Thompson v. Boonville, 61 Mo. 282; Stewart v. Clinton, 79 Mo. 603; Nevada v. Eddy, 123 Mo. 546; Wheeler v. Poplar Bluffs, 149 Mo. 36; Kolkmeyer v. Jefferson City, 75 Mo.App. 683; Lancaster v. Briggs & Melvin, 118 Mo.App. 570; State ex rel. v. St. Louis, 145 Mo. 551; Mulligan v. Lexington, 126 Mo.App. 720. (5) Defendant's act in setting the pole and doing other work was illegal, done without a contract therefor, and no acquiescence on the part of the city could work an estoppel. 2 Pomeroy Eq. Jur. (3 Ed.), sec. 964; Unionville v. Martin, 95 Mo.App. 37; State v. Murphy, 134 Mo. 67; Heidelberg v. County, 100 Mo. 69; Maupin v. Franklin, 67 Mo. 330; McKissock v. Township, 48 Mo.App. 416. (6) Whether conditions in a contract are precedent or subsequent is to be determined by the intention of the parties as collected from the contract. Finlay v. King, 3 Pet. 346; Patterson v. Camden, 25 Mo. 13; Dobbins v. Edmonds, 18 Mo.App. 307; Sedalia B. Co. v. Water Works, 34 Mo.App. 49; Rose v. Eclipse Co., 60 Mo.App. 28; St. Joseph Union Depot Co. v. Railroad, 131 Mo. 291; Ridge v. Transfer Co., 56 Mo.App. 133; St. Louis v. Gas Light Co., 87 Mo.App. 658; Larimore v. Tyler, 88 Mo. 661; Redlands Orange Growers v. Gorman, 161 Mo. 203; St. Louis Trust Co. v. York, 81 Mo.App. 342; Wall v. Ice Co., 112 Mo.App. 659.
George H. Daniel and Scott & Bowker for respondents.
(1) The ordinance granting a franchise to C. P. Bowden in July, 1908 was regularly passed. Rockville v. Merchant, 60 Mo.App. 365; Water Co. v. Aurora, 129 Mo. 540. (2) Where a city council has the power to do a thing by statute, and the statute does not require it to be done by ordinance, it may be done by resolution. Eichlaub v. City, 113 Mo. 395; State ex rel. v. Milling Co., 156 Mo. 620. (3) The condition in the ordinance to Dr. Bowden requiring the work to be completed within six months was a condition subsequent and no one could declare a forfeiture for such reason or take advantage thereof except the city. Atlantic Ry. Co. v. St. Louis, 66 Mo. 228; Knight v. Railroad, 70 Mo. 231; Hovelman v. Railroad, 79 Mo. 632. (4) A city can be guilty of estoppel the same as an individual. Union Depot v. St. Louis, 76 Mo. 393; Hovelman v....
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