Majenica Tel. Co. v. Rogers

• Decision Date: 18 February 1909
• Docket Number: No. 6,362.,6,362.
• Citation: 43 Ind.App. 306,87 N.E. 165
• Parties: MAJENICA TELEPHONE CO. v. ROGERS.
• Court: Indiana Appellate Court

43 Ind.App. 306

87 N.E. 165

MAJENICA TELEPHONE CO.

v.ROGERS.

No. 6,362.

Appellate Court of Indiana, Division No. 1.

Feb. 18, 1909.

Appeal from Circuit Court, Huntington County; James C. Branyan, Judge.

Suit by Clinton Rogers against the Majenica Telephone Company. Judgment for plaintiff. Defendant appeals. Affirmed.

M. L. Spencer and W. A. Branyan, for appellant. Fred H. Bowers and Milo Feightner, for appellee.

MYERS, J.

It is suggested by counsel for the appellee that the appeal herein should be dismissed because the bond for the appeal in terms did not contain the name of the surety in the body thereof, and was not signed by the appellant, the judgment defendant, but by the surety alone. If the bond could be regarded as insufficient, to perfect an appeal in term the full appearance of the appellee by the filing of his brief upon the merits of the cause would be sufficient to give this court jurisdiction of his person and the appeal would be treated as one taken in vacation. Hazleton v. De Priest, 143 Ind. 368, 42 N. E. 751;McKinney v. Hartman, 143 Ind. 224, 42 N. E. 681;Loucheim v. Seeley, 151 Ind. 665, 43 N. E. 646. But the omissions suggested did not render the bond ineffective. Supreme Council v. Boyle, 15 Ind. App. 342, 345, 44 N. E. 56;Shroyer v. Simons, 14 Ind. App. 631, 43 N. E. 275;Opp v. Ten Eyck, 99 Ind. 345;Stults v. Zahn, 117 Ind. 297, 20 N. E. 154;Hinkle v. Holmes, 85 Ind. 405. A special finding was rendered, and the appellant assigns that the court erred in its conclusions of law upon the facts found and in overruling its motion for a new trial.

The suit was one for an injunction and for damages. The court found, in substance, that the appellee was the owner in fee simple of a certain parcel of land, described, in Huntington county. A public highway extending east and west adjoined this land on the north and a public highway running north and south adjoined it on the east side. The appellant, a corporation, maintaining and operating a rural telephone system, and having a franchise granted by the commissioners of the county authorizing it to construct its lines on these highways through its authorized agents and employés, without having obtained the permission of appellee and without notifying him, at a point one foot east and eight feet south of the northeast corner of said land, within the limits of said highway running north and south, dug a hole four or five feet deep for the purpose of locating a telephone pole at that point; that the digging of the hole exposed a four-inch drain tile which drained appellee's premises. The tile was slightly broken by appellant's workmen, but was repaired so that the injury did not affect its use. The next day, and before any pole was erected in this excavation, the appellee filled the hole with dirt, and at the same time notified one of the appellant's managers that he was opposed to the erection of a pole at that point, for the reason that the wires placed thereon and connected with the pole erected on the other side of the premises would cross over his grounds, passing near his house, over his barn, and above a pear tree in his front yard. Said manager at that time admitted to appellee that the company intended to thus maintain its wires across said premises. Whereupon appellee notified said manager that he would not suffer the line to be so maintained. Five days later the appellant, through its manager and workmen, returned, and without appellee's knowledge or consent reopened said hole, and planted therein a telephone pole 8 inches in diameter and 28 feet in height above the soil, to which they were about to attach a telephone wire, to be stretched to the next pole erected by the company, and over appellee's premises, through his front yard, 10 feet in front of his house, in which he and his family lived, over a pear tree and above the roof of his barn. At this stage of the proceedings, appellee begun this suit to enjoin appellant from so erecting its wires and for damages. After this suit was commenced, appellant changed its plan of erecting its line at that point, changed said pole and line so as not to interfere with appellee's premises, and “there is now no objection to the telephone line as there placed by the defendant on the new route.” The court further found that at the time of the bringing of this suit there was a good reason for believing that the appellant was attempting to erect the line so as to cross over and above appellee's premises in the manner above described, but that “there was no very material injury done” appellee by what was actually done, and that the threatened injury “has been wholly obviated by the change made by the defendant since the commencement of this suit.”

The court stated as its conclusions of law that the appellee should recover his costs in this suit, and $1 damages, “and that the company should be allowed to maintain its telephone line where it is now situated.” No opposition was offered or contemplated by the appellee to appellant's proposed use of the highway, and, as the case terminated, the appellant was left free to make such use of the highway as was first intended, and to which appellee had acquiesced. Preparations had been made for conducting the telephone line outside of the limits of the highway and within the adjoining premises of the appellee, and had been carried into effect to the extent of the erection of poles in such situations that the wires connecting them would cross...