Mt. Vernon Tel. Co. v. Franklin Farmers' Coof. Tel. Co.

• Decision Date: 12 February 1915
• Citation: 113 Me. 46,92 A. 934
• Parties: MT. VERNON TELEPHONE CO. v. FRANKLIN FARMERS' COOF. TELEPHONE CO. et al.
• Court: Maine Supreme Court

92 A. 934

113 Me. 46

MT. VERNON TELEPHONE CO.

v. FRANKLIN FARMERS' COOF. TELEPHONE CO. et al.

Supreme Judicial Court of Maine.

Feb. 12, 1915.

Report from Supreme Judicial Court, Kennebec County, in Equity.

Bill for injunction by the Mt. Vernon Telephone Company against the Franklin Farmers' Co-Operative Telephone Company and others. Case reported. Bill dismissed.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Williamson, Burleigh & McLean, of Augusta, for complainant.

W. R. Pattengall, of Waterville, for defendants.

PHILBROOK, J. This is a proceeding in equity. Among the defendants named in the bill is the Kennebec Farm & City Telephone Company, but by agreement of parties the bill has been dismissed without costs as to that company, thus leaving as defendants the Franklin Farmers' Co-Operative Company and certain individuals, all of whom are residents of Vienna, in the county of Kennebec.

The plaintiff company, admittedly, has conducted and is conducting a telephone business in the towns of Vienna and Mt. Vernon, and in other towns in said Kennebec county, and has the right to erect poles and wires, and construct its lines, under written permits from the selectmen of Vienna, upon, along, over, and across the various highways and public roads in said town of Vienna.

The plaintiff avers that neither the defendant company nor the individual defendants have any lawful authority to erect telephone lines or to set poles, or string wires upon, along, over, under, or across any of the highways and public roads in said town of Vienna, but that, notwithstanding such lack of authority, the defendants have set poles, strung wires, and constructed telephone lines upon, along, over, and across the highways and public roads of the said town of Vienna, and intend to further extend said telephone lines upon, along, over, and across the highways and public roads of said town of Vienna. The plaintiff avers that the poles and wires thus erected by the defendants are upon private lands, and follow the highways of Vienna for the most part, but say that at certain points these wires are strung from poles on private land on one side of the highway to poles on private land on the other side, and are thus strung "across" the highways. It is also averred that the wires of the defendants cross those of the plaintiff at certain places, and thereby seriously damage and interfere with them.

The defendants do not deny the erection of poles and wires as alleged by the plaintiff, but say they are acting within their legal rights, since they are on private land, and further say that they are not inhibited by law from stretching wires "across" a public highways from pole to pole standing on such private lands on opposite sides of the highway.

The plaintiff asks this court by injunction to prevent the defendants from conducting a telephone business over any lines where any part of them "are constructed upon, along, over, under, or across any of the highways and public roads of said town of Vienna"; also to prevent the defendants "from erecting any posts or poles, or stringing any wires, or constructing telephone lines upon, along, over, under, or across any of the highways and public roads of said town of Vienna."

The case comes to us on report for decision upon the bill, answer, and the following agreed statement of facts:

"It is admitted that A. W. Hall, Frank French, Ernest French, Samuel Gordon, Corry Dunn, R. E. Swift, William Richards, L. L. Riggs, Abbie Hall, and Frank Roberts have partially erected, and propose to complete and maintain, a private telephone line in the town of Vienna connecting their several homes each with the other, the poles being set on private land, and the wires running from pole to pole over private land, except that at certain points said wires connecting poles across the highways at points from 20 to 23 feet above the surface thereof. The above-named defendants are also connected by contract with the said Franklin Farmers' Co-Operative Telephone Company, and thence with the outside world.

"It is agreed that, if the erection and maintenance of said wires by the above-named defendants in the manner above described is illegal or constitutes a nuisance, this bill shall be sustained against these defendants, nominal damages shall be assessed by the court, and an injunction issued against them as prayed for; otherwise the bill to be dismissed as to said above defendants.

"It is admitted that the Franklin Farmers' Co-Operative Telephone Company has erected, and now maintains, and proposes to maintain, a telephone line in the town of Vienna, the poles being set on private land, and the wires running from pole to pole over private land, except that at certain points said wires connecting said poles across the highways at points from 18 to 22 feet above the surface thereof, and it is agreed that, if the erection and maintenance of said wires in the manner above described is illegal and constitutes a...