Missouri P. Ry. Co. v. Sproul
| Decision Date | 06 January 1917 |
| Docket Number | 20602 |
| Citation | 99 Kan. 608,162 P. 293 |
| Parties | MISSOURI PAC. RY. CO. v. SPROUL. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The moving of buildings along streets is a recognized and proper use of them, and in the absence of a statutory or municipal regulation as to the manner of moving the buildings or as to the raising or removal of wires placed by a railroad or other company across streets so that buildings may be moved along the streets, the expense of raising or removing the wires to allow a building to pass, where the interference is not unreasonable and the expense is inconsiderable, should be borne by the railroad company rather than by the house mover.
Appeal from District Court, Butler County.
Action by the Missouri Pacific Railway Company against Loren Sproul. From a judgment for defendant, plaintiff appeals. Affirmed.
W. P Waggener and J. M. Challiss, both of Atchison, and Hamilton & Leydig, of El Dorado, for appellant.
Leland, Geddes & Ralston and Kramer & Benson, of El Dorado, for appellee.
This action was brought by the Missouri Pacific Railway Company to enjoin Loren Sproul from removing or interfering with the telegraph wires of the company used in connection with the operation of its trains.
The defendant is engaged in the business of moving buildings in El Dorado, and had a contract to move a building from where it stood to a place on the other side of the plaintiff’s railroad. Suspended on the same poles were the wires owned jointly by the plaintiff and the Western Union Telegraph Company, also those of the Atchison, Topeka & Santa Fé Railway Company and a local telephone company. When the defendant was ready to move the building across the track, he notified the agent of the plaintiff that he desired to cross the track under the wires of the company and was informed that the wires might be lifted for the passage of the building upon the payment of $3.80, a charge made, it was said, to meet the expense of a lineman releasing and raising the wires. Defendant refused to pay the charge, and, as he insisted on crossing the railroad, plaintiff obtained an order restraining him from interfering with the wires. Subsequently the order was modified so as to require the defendant to deposit the $3.80, the alleged expense of moving the wires, and $20 to cover the probable costs of the action. The deposit was made, and the building was moved across the railroad by releasing the wires from the poles on either side of the crossing, and then two men on the top of the building, neither of whom appear to have been the employes of the plaintiff, lifted the wires, and the building passed underneath them. At the end of the trial the court gave judgment for the defendant refusing the injunction asked by plaintiff, and adjudging that the $23.80 previously deposited by the defendant should be returned to him. The plaintiff appeals.
The right of the plaintiff to maintain telegraph lines along and across public highways "in such manner as not to incommode the public in the use of such roads, streets, and waters" is directly given by statute, and this right may be regulated, but not denied by a municipality. Gen. Stat. 1909, § 1789; Wichita v. Telephone Co., 70 Kan. 441, 78 P. 886; Telephone Co. v. Concordia, 81 Kan. 514, 106 P. 35.
It does not appear that the city had undertaken to regulate the height at which wires should be maintained on and over the streets of the city nor to provide for lifting the wires when high structures were to be moved upon the streets over which wires had been placed. The right of the defendant to the reasonable use of the street for the moving of buildings is not open to question. The testimony is that buildings are frequently moved along the streets of El Dorado and is not an uncommon use of the streets in other cities. It appears that the city of El Dorado had issued a license to the defendant authorizing him to move buildings, but it is not shown that any regulations had been made by the city as to the manner of moving buildings or as to the relative duties and rights of parties when buildings are being moved across streets over which wires are strung. It is competent for a city to regulate the height at which telegraph wires shall be placed so as not to incommode the public in the use of the streets, and also to regulate the business of moving buildings along and across streets so as not unnecessarily to interfere with the use of the streets by others; and no reason is seen why it might not provide for and regulate the raising and removal of wires so as to allow buildings to pass under them and to provide for the expense of such raising and removal of wires. No such regulation having been made, and each party having a right to the use of the streets, the only substantial question in the case is whether the house mover should pay the expense of lifting the wires of plaintiff for the passage of the building. It does not appear that any of the other companies made any objection to the raising of their wires or any charge for doing it.
The plaintiff insists that its right to the use of the streets was paramount to the rights of a...
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...of wires and poles in moving oversized objects have been upheld as valid exercises of the police power. See, Missouri Pac. Ry. v. Sproul (Kan.1916), 99 Kan. 608, 162 P. 293; State v. Omaha & C. B. St. Ry. Co. (Neb.1916), 100 Neb. 716, 161 N.W. 170; Weeks v. Carolina Tel & Tel. Co. (N.C.1915......
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Tandy v. The City of Wichita
...are not used primarily for the purpose of moving houses over them. That is an extraordinary use of the streets. In Railway Co. v. Sproul, 99 Kan. 608, 610, 162 P. 293, the following is "The moving of buildings, derricks, and such structures on the streets and other highways is not an infreq......
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Cracraft v. Kansas Power & Light Co.
... ... thereof had been determined the cost should be apportioned ... between the parties and paid by them. As bearing on this ... question see Missouri Pac. Railway Co. v. Sproul, 99 ... Kan. 608, 162 P. 293, L.R.A.1917C, 772 ... Appellant ... complains of some of the items of damages ... ...