Magee v. Overshiner

• Decision Date: 29 March 1898
• Docket Number: 18,158
• Parties: Magee v. Overshiner
• Court: Indiana Supreme Court

49 N.E. 951

150 Ind. 127

Magee v. Overshiner

No. 18,158

Supreme Court of Indiana

March 29, 1898

From the Howard Circuit Court.

Affirmed.

G. W Funk, D. H. Chase and Blacklidge & Shirley, for appellant.

S. T McConnell, A. G. Jenkins, M. Bell, W. C. Purdum, E. B Goodykoonts, and G. M. Ballard, for appellee.

OPINION

Hackney, J.

Rufus Magee, the owner of a business property fronting upon one of the principal business streets of the city of Logansport and the owner of the fee in the street, brought this suit for a mandatory injunction to cause the removal of a telephone pole placed by the appellee, Overshiner, in the curb-line of the sidewalk in front of said property. The appellee, the owner of the telephone system in said city, placed said pole and strung wires upon the same in the night time, after protest by the appellant, and without compensation to or consent from him.

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

The decisions of the courts of this country, so far from establishing a definite rule upon this question, are at such variance as to render hopeless any effort to reconcile them.

At the threshold of our inquiries there are certain well recognized propositions: The owner of the fee in a street which has been dedicated or condemned for a street is entitled to restrict its uses to such as are proper street uses, as stated by most of the decisions, to the uses contemplated at the dedication or condemnation; the public have only an easement for the proper uses of a street. When applied to new uses the fee-owner is entitled to compensation. When a use is by proper public authority, and is not an additional burden upon the fee, no compensation is due the fee-owner. In the use of the public easement there is no right to unreasonably burden the fee to the special injury and damage of the fee-owner.

These general propositions, however, are of little service when we revert to the question: 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 fifty 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 mail 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 servitude for which the fee-owner would be entitled to compensation.

It must be, however, that the contemplated uses should be deemed to have been not only in the walking, riding upon horseback and in wagons or 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, and the relations of man to man socially and otherwise. If this were not true, the way originally dedicated for a suburban highway, but by the growth of population becoming a city street, or the dedication of a village or town street afterwards becoming the principal thoroughfare of a great city, would be limited to the uses in vogue at the time and suited to the country road or the village or town street, and the growth of population, the advancement of commerce, and the increase in inventions for the aid of mankind would be required to adjust themselves to the conditions existing at the time of the dedication, and with reference to the uses then actually contemplated. That a dedication or condemnation is deemed to comprehend uses not actually in the minds of the parties at the time is seen from the almost unvarying rule that the electric street railway systems are not a new use and an additional servitude, but are a new method of enjoying an old and ever-existing use. Eichels v. Evansville Street R. W. Co., 78 Ind. 261; Chicago, etc., R. W. Co. v. Whiting, etc., R. W. Co., 139 Ind. 297, 38 N.E. 604; Lockhart v. Craig Street R. W. Co., 139 Pa. 419, 21 A. 26; Detroit City R. W. Co. v. Mills, 85 Mich. 634, 48 N.W. 1007. They carry the people by means of a propulsive force which is a substitute for the horse or mule which formerly drew the cars. The horse car was accepted as a conveyance added to the numerous kinds of vehicles in use, and varying in the use of stationary tracks or railways.

Poles and wires for electric lighting have been admitted as a proper use on the ground that the streets are lighted and their general uses thereby made safer and more expeditious. Incidentally, the same use has been employed for supplying light to public, business, and private houses. Sewers have been admitted as not constituting an additional servitude because they afforded a means of drainage for the streets, although one use was in carrying the waste from buildings of the citizens. Gas mains and poles were admitted in like manner as electric lighting systems and for like uses.

In none of these cases has the inquiry been as to whether the fee-owner contemplated such uses, or whether they were in vogue at the time of the dedication. They were always deemed to constitute a beneficial use of the streets as in some degree aiding in the means or opportunities for conducting the affairs of the inhabitants, and in facilitating the communication indispensable to such affairs.

Some of the authorities, reaching the same conclusion, treat the uses of a street, arising from a dedication or condemnation, as expansive, not confined to uses already permitted, but, as civilization advances, admitting new uses. Angell and Ames Corp., section 312; Julia Building Ass'n v. Bell Tel. Co., 88 Mo. 258, 57 Am. Rep. 398; Cater v. Northwestern, etc., Co., 60 Minn. 539, 63 N.W. 111; Detroit City R. W. Co. v. Mills, supra.

In Cater v. Northwestern, etc., Co., supra, it is 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 afterwards 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."

Judge Elliott, in his work on Roads and Streets, p. 529, quotes approvingly from Cooley's Con. Lim., 556, as follows: "When land is taken or dedicated for a town street, it is unquestionably appropriated for all ordinary purposes of a town street; not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use for carriages which run on a grooved track; and the preparation of important streets in large cities for their use is not only a frequent necessity, which must be supposed to have been contemplated, but it is almost as much a matter of course as the grading and paving."

Upon this branch of our inquiries we must conclude, therefore, upon both reason and authority, that the uses of streets prevailing at the time of the taking or dedication of a street are not the limits of the uses to which the public is entitled, and which the soil-owner is deemed to have contemplated, but that such uses are to be enlarged to include all of the additional and improved methods of attaining the same objects and enjoying the same privileges, not, however, to the denial or substantial impairment of the fee-owner's use and enjoyment of his abutting property.

Is the telephone, with its necessary poles and wires, to be regarded as a new use, so disconnected from the purposes and objects in actual and legal contemplation when our city streets were dedicated or condemned, as to constitute an additional servitude?

The...