Leppard v. Central Carolina Telephone Co.

• Decision Date: 09 June 1944
• Docket Number: 15655.
• Citation: 30 S.E.2d 755,205 S.C. 1
• Parties: LEPPARD v. CENTRAL CAROLINA TELEPHONE CO.
• Court: South Carolina Supreme Court

30 S.E.2d 755

205 S.C. 1

LEPPARD v. CENTRAL CAROLINA TELEPHONE CO.

No. 15655.

Supreme Court of South Carolina

June 9, 1944

James E. Leppard, of Chesterfield, and L. C. Wannamaker, of Cheraw for appellant.

J Arthur Knight, of Chesterfield, for respondent.

FISHBURNE Justice.

Appellant the owner of a lot abutting on a public street or highway in the town of Chesterfield, upon which her residence is located, brought suit in trespass to recover damages for injury to her property, and for a mandatory injunction to cause the removal of a telephone pole and wires placed by the respondent in the curb line of the sidewalk in front of her residence. This telephone line was built without the consent of the appellant, against her protest, and without the payment of compensation.

The defendant is a foreign corporation, authorized to erect and maintain its telephone lines along and upon any of the highways or public roads of this State. Code, Section 8531. And under authority of the law it constructed the line in question along the state highway, the fee to which, subject to the public easement, is in the plaintiff.

The principal question in the case is as to whether such use of the street or highway is a servitude, not within the contemplated uses of a city street, and therefore an additional burden on the fee of the appellant, for which she should be compensated.

Whether a telephone line can be erected and maintained upon a public street without compensation to the owner of the fee is a question upon which there is a wide divergence of opinion. The decisions of the Courts of this country are at such variance as to render hopeless any effort to reconcile them. It is generally admitted that the Legislature may subject the highway to this use. The question is whether it can be done without compensation to the owner of abutting lands. On one side it is said that a telephone line is but an improved method of subjecting the streets of a city 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 lighting system erected in substantially the same manner, and no more obstructive. The public easement, it is asserted, may be utilized for the transmission of intelligence, as well as for travel and transportation. When new modes of travel and new means of communication become necessary, the public have a right to use them, and they impose no new burden on the soil unless they are inconsistent with the old use. Accordingly, many authorities are to the effect that the poles and wires of a telephone are not an additional servitude upon a public highway. And they are supported by the very sound reasoning that a message sent along the wires in the street takes the place of a messenger, and thus relieves the street of much of the use to which it would otherwise be subjected.

On the other hand, it is argued that the use of streets for the permanent maintenance of poles and wires occupying a portion of the street is a use not contemplated in the laying out of streets generally. Reasoning on this basis, it is the rule in many jurisdictions that a telephone line is an additional servitude upon a public highway, for which compensation must be paid. Many of the authorities on each side of this question are cited in the well considered case of Frazier v. East Tennessee Telephone Co., 115 Tenn. 416, 90 S.W. 620, 3 L.R.A.,N.S., 323, 112 Am.St.Rep. 856, 5 Ann.Cas. 838; 18 Am.Jur., Sec. 204, page 834; 29 C.J.S. Eminent Domain, § 133d, page 963. And see Annotations, 8 A.L.R. 1293, 19 A.L.R. 383, 106 Am.St.Rep. 232.

In this case, the appellant conveyed by deed to the South Carolina Highway Department, on June 8, 1931, an unqualified right of way for the construction of a state highway on Route No. 9, running in front of her residence. It is clear that as an abutting property owner she was owner of the fee to the center of the highway, which, upon the execution of her deed, became subject to the public easement.

The proposition is equally elementary that the acquisition by the public of an easement in land for the construction of a public highway, gives no right to another and different easement subversive of its proper use. But when a use is granted by proper authority, and does not constitute an additional burden upon the fee, no compensation is due to the owner. Lay v. State Rural Electrification Authority, 182 S.C. 32, 188 S.E. 368; Mordhurst v. Fort Wayne & Southwestern Traction Co., 163 Ind. 268, 71 N.E. 642, 106 Am.St.Rep. 222, 2 Ann.Cas. 967; Cater v. Northwestern Tel., Etc., Co., 60 Minn. 539, 63 N.W. 111, 28 L.R.A. 310, 51 Am.St.Rep. 543.

It appears from the manner in which the case has been presented and discussed by counsel, that defendant's telephone line is for the use of the public upon payment of certain charges. Therefore, the use to which the highway has been appropriated by the defendant is a public one. The transmission of intelligence by telephone is a business of a public character, which under our law is to be conducted under public control, in substantially the same manner as the transportation of persons or property by common carriers. State v. Citizens' Tel. Co., 61 S.C. 83, 39 S.E. 257, 55 L.R.A. 139, 85 Am.St.Rep. 870; Code Sections 8229, 8230, 8231, 8232, 8239, 8531, and 8532.

Whether an easement authorizes the use of land in a particular way depends upon the nature and extent of the easement. In Magee v. Overshiner, 150 Ind. 127, 49 N.E. 951, 40 L.R.A. 370, 65 Am.St.Rep. 358, it is said:

"Is the telephone equipment an unnecessary or unreasonable obstruction, and a new and additional servitude? Will it suffice to say that because a street was dedicated or condemned 50 years ago, before electric inventions for lighting, communicating oral and telegraphic messages, and propelling street cars were thought of, it could not therefore, have been condemned or dedicated in contemplation of the uses therein of such inventions; or that, because gas had not been used as a method of lighting, the right to lay pipes to conduct the gas could not have been contemplated; or that because water, for protection against fire, had not been forced through pipes in the streets, such use could not have been contemplated; and so on as to the uses of the street for sewerage, for natural gas piping, for telegraph or telephone lines, above or below the surface of the street, or for the possible future uses of pneumatic tubes for the transmission of mails or parcels, and the distribution of steam or electricity for heating, etc.? If what was actually contemplated at the time of the dedication should be found to answer the question in every case, many of the uses common to the streets of every city would be additional servitudes, for which the fee owner would be entitled to compensation."

And the Court in the Magee case reached the conclusion that the contemplated uses should be deemed to have been not only in the walking, riding upon horseback and in wagons and other vehicles drawn by animals in the going and returning upon business, social, religious, or political missions; but also by such methods of travel and communication, in addition or in substitution for those, as might come into vogue and be accepted and recognized as proper and important uses of the streets in the varying needs and demands of commerce.

In Cater v. Northwestern Tel., Etc., Co., 60 Minn. 539, 63 N.W. 111, 112, 28 L.R.A. 310, 51 Am.St.Rep. 543, the Court said:

"The question, then, is, what is the nature and extent of the public easement in a highway? If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals; ***, constituting, respectively, the iter, the actus, and the via of the Romans. And thus the methods of using public highways expanded with the growth of civilization until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterward be discovered and developed in aid of the general purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired, and are more onerous to him than those then in use."

After a careful consideration of many of the cases covering this field of the law, we are of the opinion that the grant or a condemnation of a public street or highway must be presumed to have been made not for such purposes and usages only as were known to the landowner at the time of the grant, but for all public purposes, present and prospective, consistent with its character as a public highway, and not actually detrimental to the abutting real estate. The convenience and advantage of all the inhabitants of the city and of the public at large must be regarded as objects contemplated when the grant was made.

We also quote with approval the following from the case of Cater v. Northwestern Tel., Etc., Co., supra:

"We are not unmindful that private property cannot be taken for a public use without compensation, however important that public use is. We are not forgetful of the fact that care should be

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