McCulloch County Electric Co-Op. v. Hall

• Decision Date: 12 July 1939
• Docket Number: No. 8835.,8835.
• Citation: 131 S.W.2d 1019
• Parties: McCULLOCH COUNTY ELECTRIC CO-OP., Inc., v. HALL.
• Court: Texas Court of Appeals

131 S.W.2d 1019

McCULLOCH COUNTY ELECTRIC CO-OP., Inc., v. HALL.

No. 8835.

Court of Civil Appeals of Texas. Austin.

July 12, 1939.

Rehearing Denied September 27, 1939.

Appeal from District Court, McCulloch County; E. J. Miller, Judge.

Suit for injunction by W. O. Hall against McCulloch County Electric Cooperative, Incorporated. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded.

Thompson, Knight, Baker, Harris & Wright, of Dallas, and Adkins & Adkins, of Brady, for appellant.

Woodruff & Holloway, of Brownwood, and Newman & McCollum, of Brady, for appellee.

BLAIR, Justice.

Appellee, W. O. Hall, sued appellant, McCulloch County Electric Co-operative, Inc., to enjoin it from energizing with electricity its high-voltage transmission lines until it had paid into court an amount sufficient to "metallicize" appellee's telephone lines as protection against electricity by induction and conduction from the high-voltage lines then under construction. The term "induction" describes electrical interference by the flow of electricity through the atmosphere from one wire to another without actual contact. The term "Conduction" describes the same condition, except that the medium of the flow of electricity from one wire to the other is the earth.

Appellee alleged that appellant was constructing its high-voltage transmission lines over and parallel to appellee's telephone lines along the public highways, with full knowledge that the energizing of the transmission lines with powerful currents of electricity would by induction and conduction interferences cause the destruction of the telephone system, which requires only a weak current of electricity in its operation, unless the telephone lines were metallicized against such interferences; and that appellant was negligent in the construction of the transmission lines in two particulars; (1) in not constructing a different type of power or transmission line, to-wit: one with a "balanced circuit," or isolated from the ground circuit, instead of a system requiring a grounded wire return of electricity; and (2) in not constructing its transmission lines 600 to 1,000 feet from the prior constructed telephone lines.

In answer to special issues, the jury found substantially as follows:

1. That the power line being constructed when put into service will interfere with the operation of appellee's telephone line to such an extent as to render it useless.

2. That there is no reasonably safe and practical method by which appellant could construct its power line so as not to materially interfere with the operation of the telephone line when such power line is put into use.

3. That appellant is not constructing its power line in accordance with the best and most improved methods to avoid interference with appellee's telephone lines.

4. That appellant is guilty of negligence in the method and manner of constructing and causing to be constructed its power line.

The Court defined "negligence" to be the failure to use care and precaution, means methods and appliances as a person of ordinary prudence would use to avoid interference with appellee's telephone business.

The jury also found, in answer to other issues, facts concerning the value of the telephone system; the amount necessary to metallicize same, and its value both before and after being metallicized. Judgment was accordingly rendered for the amount of the cost of metallicizing the telephone system, less the increase in value which would result from metallicizing; and appellant was enjoined from energizing its transmission lines until it had paid said amount into court.

Under our conclusions, two questions of law are presented:

1. Does the induction and conduction of electricity complained of by appellee to his telephone system, rendering the same useless unless metallicized, constitute damages and destruction of appellee's property within the meaning of Sec. 17 of Art. 1 of the Constitution of Texas, Vernon's Ann.St., providing that no business or property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, in the absence of negligence on the part of the appellant in the construction and maintenance of its power line in question?

2. If negligence is required as fixing liability for damages resulting from the induction and conduction of electricity complained of, then did appellee show negligence on the part of appellant in constructing the high-power line?

The law is settled in Texas, the United States and in England that there is no liability for induction and conduction with a telephone line by a high-power transmission line, in absence of negligence, malice or unskilfulness on the part of the interfering transmission line or agency; and no extended discussion need be made of this question.

In the case of Southwestern Public Service Co. v. Moore, 119 Tex. 391, 29 S.W.2d 329, 332, the Commission of Appeals, in answering a certified question, held as follows: "The question as to whether an electric power company is liable to a telephone or telegraph company for inductive or conductive interference with the latter's lines by reason of electrical energy in the power company's lines, in the absence of negligence, unskillfulness, or malice, while of first impression in this state, is not a new or novel one. It has frequently been solved by the courts of England and of many jurisdictions in this country. The decided weight of authority sustains the proposition of nonliability for such injury in the absence of negligence or malice."

The above conclusion of nonliability in absence of negligence is predicated upon the reasoning that where a right is common and universal, and capable of being exercised by all at the same time, the rule that he who is prior in point of time is prior in right is not applicable, because he who is first in the field does not thereby gain a monopoly of use. In applying the rule courts have held that a telegraph company cannot recover damages for the mere construction of a power line so close to its wires that the induction interferes with their use. Postal Tel.-Cable Co. v. Pacific Gas & E. Co., 202 Cal. 382, 260 P. 1101, 56 A.L.R. 414.

In the case of Phillippay v. Pacific Power & L. Co., 120 Wash. 581, 207 P. 957, 211 P. 872, 23 A.L.R. 1251, after discussing the fact that the telephone company did not own the earth which it used to return its current, held in substance that where a high-voltage power line is lawfully maintaining its line along a public highway it is not liable to the owners of a previously constructed telephone system, rightfully constructed along the same highway, for the cost of substituting a metallic return circuit for the earth as formerly used, and which is made necessary by induction from the high-power line which interferes with the use of the telephone company's instruments. Other pertinent authorities are: Cumberland Teleg. & Tel. Co. v. United Electric Ry. Co., 93 Tenn. 492, 29 S.W. 104, 27 L.R.A. 236; Georgia Power Co. v. Parker, 48 Ga. App. 807, 173 S.E. 730; Citizens' Tel. Co. v. Ft. Wayne & S. Ry. Co., 53 Ind.App. 230, 100 N.E. 309, Ann.Cas.1916A, 132; Paris Electric Ry. Co. v. S. W. Teleg. & Tel. Co., Tex.Civ.App., 27 S.W. 902; Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 135 N.Y. 393, 32 N.E. 148, 17 L.R.A. 674, 31 Am.St.Rep. 838; Western Union Tel. Co. v. Los Angeles Electric Co., C.C., 76 F. 178; Northwestern Tel. Exchange Co. v. Twin City Tel. Co., 89 Minn. 495, 95 N.W. 460, 463; Northern Tel. Co. v. Iowa Tel. Co., Iowa, 98 N.W. 113; Birmingham Traction Co. v. Southern Bell Tel. & Teleg. Co., 119 Ala. 144, 24 So. 731; Weleetka Light & Water Co. v. Northrop, 42 Okl. 561, 140 P. 1140; Edison Electric Light & Power Co. v. Merchants' & Manufacturers' Electric Light, Heat & Power Co., 200 Pa. 209, 49 A. 766, 86 Am.St.Rep. 712.

The only differences between the instant case and the Moore case above quoted from is, that the jury found that appellant was negligent; whereas, in the Moore case the jury found the defendant not negligent in the construction of its high-power line. If there is any evidence to support this finding of the jury, of course appellee should recover. We have reached the conclusion, however, that the undisputed evidence shows that appellant is not guilty of negligence in the construction of its...