Lowther v. Bridgeman

• Decision Date: 07 March 1905
• Citation: 50 S.E. 410,57 W.Va. 306
• Parties: LOWTHER et al. v. BRIDGEMAN.
• Court: West Virginia Supreme Court

57 W.Va. 306

50 S.E. 410

LOWTHER et al.

v.BRIDGEMAN.

Supreme Court of Appeals of West Virginia.

March 7, 1905.

TELEPHONE COMPANIES—CONSTRUCTION OP LINES—RIGHTS OF INDIVIDUALS— ADDITIONAL SERVITUDE.

1. The word "companies, " as used in chapter 96, p. 297, of the Acts of the Legislature of 1891, includes an individual or individuals, as well as incorporated companies. Under that act the county court of a county was authorized to consent to the placing of poles and wires for a telephone for public use along a county road by an individual.

2. A reasonable use of a public highway for the purpose of placing poles and wires for a telephone for public use, under legislative authority, is not an additional servitude upon the fee of the abutting landowner in such highway.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 312.]

(Syllabus by the Court)

Appeal from Circuit Court, Wetzel County; M. H. Willis, Judge.

Bill by R. F. Lowther, administrator, and others, against B. C. Bridgeman. Decree for plaintiffs, and defendant appeals. Affirmed.

Hall & Hall and J. W. Mclntire, for appellant.

Cornett & Newman, Thos. P. Jacobs, and Frank V. lams, for appellees.

COX, J. This is an appeal and supersedeas from a decree of the circuit court perpetuating an injunction against the defendant, Bridgeman, awarded upon the bill of the plaintiffs, the administrator and heirs of F. P. Lowther. The injunction restrains the defendant from interfering with the complainants in the erection, construction, and maintenance of a telephone line or lines, telegraph line or lines, along the public highway leading from the town of New Martinsville, in a northerly direction, to the Marshall county line, as the same passes through the farm of the defendant Bridgeman. The county court of Wetzel county granted, or, rather, consented to, a franchise to construct a telephone line upon this public highway to F. P. Lowther, in his lifetime. Its construction was not commenced until after his death. The plaintiffs, in the extension of their system of public telephone lines, completed a line along this highway to defendant's land, and were endeavoring to complete it along such highway, where the same passes through defendant's land, when theywere prevented by the defendant, and notified to discontinue the work of construction.

The subject-matter of this controversy is a telephone line for public use. The franchise to build it was consented to by the county court of Wetzel county on the 7th day of January, 1896. The authority for such consent is claimed under chapter 96, p. 297, of the Acts of the Legislature of 1891. A telephone line for public use is a public utility. Both the telegraph and the telephone have become not only necessary, but almost indispensable, as vehicles of public intelligence, and for the conducting of affairs of business and commerce. They are both instrumentalities of a public character, though they exist for private gain. Their operation in doing a general business is in the nature of a public employment, for they are public or quasi public servants. Joyce on Elec. Law, § 14. A franchise to operate a telephone is the privilege to operate a public business. Thompson on Corporations, vol. 4, § 5335, says: "Franchises have been defined to be branches of the royal prerogative subsisting in the bands of the subject by grant from the King. It has been well observed that, under our American system and laws, this definition is not strictly correct, since our franchises spring from contracts between the sovereign power and private citizen, made upon a valuable consideration, for purposes of public benefit as well as of individual advantage. Chancellor Kent says that 'franchises are privileges conferred by grants from the government, and vested in private individuals.' " See, also, Watson v. Railroad Co., 49 W. Va. 539, 39 S. E. 193, and 14 Am. Eng. Enc. Law, 4.

The defendant claims that the erection of this telephone line was without authority; that such a franchise cannot be granted to an individual; that it can only be granted to an incorporated company. The language of the act (chapter 96, p. 297, Acts 1891) is "that telephone companies desiring to extend lines of telephone in this state may place poles for wires along any county road by and with the consent of the county court of the county through which such line may pass, " etc. It may be argued that it is the policy of the law in West Virginia, under this and other statutes, to grant such franchises only to corporations, in order that the performance of public duty may be better required. The performance of a public duty may be compelled when the business is conducted by an individual as fully as when it is conducted by a corporation. A corporation is but an artificial person created and limited by the statute. Both the individual and the corporation are subject to the laws governing the business conducted by them. The public duty springs not alone from contract, but it is the result of the character of the business and the laws regulating it. The business is subject to constitutional and legislative control and lawful police regulations. Joyce on Elec. Law, supra. The public duty does not arise from any question of ownership, but from the nature and character of the business, and the fact that it is conducted under a franchise granted by public authority. It is not claimed that there is any authority under this act to consent to the erection of poles and wires for a telephone for private use along a public highway either by a corporation or an individual. No question of the right of eminent domain is involved in this case. The question arising is whether or not an individual can, under the act mentioned, hold a franchise to construct a telephone for public use along a public highway. Did the Legislature intend to restrict the conducting of the business of operating a telephone for public use to a cor-portation, and exclude individuals from this class of legitimate business? Unless there be some constitutional or legislative restriction, then the business, being legitimate, would be open to all persons alike, whether natural or artificial. In the case of Watson v. Railroad Co., supra, it was held, where the Legislature gave to a municipal corporation power to grant and regulate franchises generally, that a franchise to operate a street railway might be granted to an individual.

It is contended that it clearly appears that such a franchise can only be granted to a corporation, when chapter 96, p. 297, Acts 1891, is read in connection with section 48, c. 54, of the Code of 1899, in which this language occurs: "The county court of any county may authorize any telegraph or telephone company, organized under this chapter, to erect and maintain telegraph or telephone poles on any land condemned or used as a public road, but not in such way as to obstruct any such road. But this section shall not apply to the National or Cumber-Jand Road." It will be observed that this provision is found in a chapter of the Code relating to joint-stock companies, and that it refers and expressly limits its application to any telegraph or telephone companies organized under that chapter. Chapter 96, p. 297, of the Acts of the Legislature of 1891, is an independent act, passed without reference to section 48 of chapter 54, and does not purport to amend, re-enact, or repeal it. Instead of sustaining the view that chapter 96, Acts 1891, limits the granting of franchises thereunder to the incorporated companies mentioned in section 48, c. 54, it would seem to sustain the opposite view—that...