Maryland Tel. & Tel. Co. v. Ruth
| Decision Date | 06 December 1907 |
| Citation | 68 A. 358,106 Md. 644 |
| Parties | MARYLAND TELEPHONE & TELEGRAPH CO. v. RUTH. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Henry Stockbridge Judge.
Action by the Maryland Telephone & Telegraph Company against Samuel H. Ruth. Judgment for defendant. Plaintiff appeals. Affirmed.
Argued before BOYD, C.J., and PAGE, PEARCE, SCHMUCKER, and BURKE JJ.
Jesse Slingluff and Frank Gosnell, for appellant.
Jesse N. Bowen and John E. Semmes, for appellee.
The appellant sued the appellee in the superior court of Baltimore City for damages for cutting down a telephone pole which it had erected on a private alley in the rear of his residence. The defendant filed the general issue pleas, and the case was tried before the court without a jury. The trial resulted in a judgment for the defendant, and the plaintiff appealed.
The record contains but one bill of exceptions, which is to the court's action on the prayers. The facts appearing from the record are substantially as follows: The appellee and his wife Cora E. Ruth owned as tenants in common in 1906 a leasehold estate, renewable forever, subject to a redeemable ground rent created by a lease from William Penrose in 1903 in their residence known as No. 212 North Fulton avenue in Baltimore City. The lot on which the house stood was 14 feet front by 90 feet deep to a 10-foot private alley of which it was entitled to the use in common by the express terms of the lease. The rear end of the lot was described in the lease as "running southerly on the east side of said alley." That form of description must be construed, under Acts 1892, p. 905, c. 684, to have passed to the lessee and those claiming under him the title of the lessor to the center of the alley, subject to its use in common as an alley, there being in the lease, so far as the record shows, no reservation to the lessor of all of the title to the alley. In the latter part of February, 1906, the telephone company, through one of its engineers, applied to Ruth and his wife at their residence for permission to erect in the alley back of their lot a pole for telephone and electric light wires. The permission asked for was positively refused by both Ruth and his wife. Notwithstanding this refusal the company on March 2, 1906, when according to the testimony of Ruth and his wife they were both absent from the premises, erected on the alley immediately adjacent to their lot a tall pole, 16 inches in diameter at its base, and subsequently attached to the upper part of it cross-arms, and hung a transformer and strung wires thereon. The top of the pole, as erected, and the cross-arms, projected over Ruth's lot. When Ruth came home and saw the pole in position, he at once employed as his counsel James Fluegel, Esq., who on his behalf first by telephone and then by letter demanded of the company that it remove the pole, and notified it that if it did not promptly do so he would apply to equity for an injunction to compel its removal. The company made no reply to this letter, but on March 14th, its employés so straightened the pole as to practically remove the projection of its top and cross-arms over the Ruth lot, but permitting it to remain standing in its original position in the alley adjacent to the lot. In the meantime Ruth filed the bill for the injunction, and the company answered it denying his right to relief. Ruth then employed as counsel John E. Semmes, Esq., who on April 7, 1906, wrote at length to the company, in his behalf, calling its attention to its attitude and conduct in reference to this pole, and informing it that Ruth intended to abandon his equity proceeding and remove the pole himself, unless the company promptly took it away, and requesting a reply to the letter without delay. The company having made no reply to this letter, Ruth had the pole cut down on April 13th, and on the next day Mr. Semmes, as his counsel, notified the company of the fact, and requested it to remove the pole which was then lying in the alley, offering at the same time to remove it himself if the company wished him to do it. There is no evidence that any disturbance or breach of the peace was caused by cutting down the pole, and it was stated in the argument of the appeal without contradiction that the wires had been cut by an expert and tied up so that they would not hurt any one and the pole chopped down by competent men in a careful manner under the direction of Mr. Semmes. No effort was made to lower the transformer from the cross-arms of the pole before it was cut down, and that appliance was badly injured by falling to the ground with the pole. The evidence shows that the transformer consisted of an iron box, and its contents, weighing from 150 to 200 pounds, and costing about $45. It was fastened by hooks or bolts to the cross-arm near the top of the pole, and, although the employés of the company generally use a block and tackle to raise and lower transformers, those weighing not more than this one could be and frequently were handled by the use of a rope alone. Mr. Penrose, the owner of the reversion in fee in the Ruth lot, testified that the company had also applied to him for permission to erect the pole, and that he had declined to give it. On cross-examination he admitted that he may have said to the plaintiff's counsel that he "didn't give permission for the pole to be there; that he didn't want to get mixed up in it, and didn't care one way or the other." There was evidence in the record tending to show that the presence of the pole at the rear of defendant's lot interfered materially with the use of the alley by him and his family, and also evidence of an opposite tenor.
At the close of the testimony the plaintiff offered eight prayers and the defendant offered four. The court granted the plaintiff's second and fourth prayers and rejected the others and all of the defendant's prayers, and in lieu of the defendant's second and fourth prayers made a ruling of law as follows: The court rules as a matter of law that if the court, sitting as a jury, finds that the alley in the rear of the premises of the defendant was a private alley, laid out for the benefit of the property of the defendant and other property abutting thereon, and that the plaintiff without a permit, and without permission from any one possessing authority to grant such...
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