Nebraska Telephone Company v. City of Fremont

• Decision Date: 18 May 1904
• Docket Number: 13,590
• Parties: NEBRASKA TELEPHONE COMPANY, APPELLEE, v. CITY OF FREMONT ET AL., APPELLANTS
• Court: Nebraska Supreme Court

99 N.W. 811

72 Neb. 25

NEBRASKA TELEPHONE COMPANY, APPELLEE, v. CITY OF FREMONT ET AL., APPELLANTS

No. 13,590

Supreme Court of Nebraska

May 18, 1904

APPEAL from the district court for Dodge county: CONRAD HOLLENBECK JUDGE. Affirmed.

AFFIRMED.

Gray & Abbott, for appellants.

W. W Morsman and Frank Dolezal, contra.

AMES C. LETTON and OLDHAM, CC., concur.

OPINION

AMES, C.

In 1881, J. J. Dickey, L. H. Korty and W. J. Bigger united in an association, not incorporated, and named by them the Fremont Telephone Company. By that name they applied to the mayor and council of the city of Fremont in session, on the 17th day of December, in that year, for permission to construct and maintain a system of poles, wires and apparatus constituting a telephone exchange, through and over the streets, avenues and alleys of the city. Having heard the application, the body instructed the city attorney to prepare an ordinance suitable to accomplish the desired purpose, and adjourned until the 19th of the month. At an adjourned meeting, held accordingly, an ordinance was duly enacted, and the following entry appears on the record of the proceedings: "On motion of Murray, a permit was granted to the Fremont Telephone Company to erect their poles and wires thereon, subject to ordinance number 77," the measure just adopted. Of sections one and two of the ordinance, which was unanimously adopted, the following is a copy:

"Section 1. That any person, company or corporation, is hereby authorized to erect poles and wires on the streets of the city of Fremont for the purpose of erecting and maintaining any telephone, telephones, telegraph or telegraphs, upon obtaining the consent of the mayor and council of said city to such use of the streets; provided, that such poles and wires be so erected as to in no manner interfere with the public use of the streets and sidewalks of said city; and provided further, that the erection of such poles and wires shall always be under the supervision and control of the committee on streets and sidewalks of said city; and provided further, that the location and height of any pole or wire may at any time be changed by the council.

"Section 2. The consent of the mayor and council, provided for in the first section of this ordinance, may be given at any regular or special meeting of the council, and shall be entered upon the minutes, and such consent shall authorize the use of the streets of said city for the erection of telephone or telegraph lines, subject to such regulations as have been or may be provided by ordinance; provided that in all cases where any person is desirous of moving any building or buildings through the streets of said city, any party owning or controlling said wires shall, after having twenty-four hours notice, raise up said wires enough to enable the ready and free movement of such buildings."

There is no question as to the authority of the city to grant the license or privilege, as by these proceedings it purported to do. Shortly afterwards the association accepted the grant, and constructed an exchange, occupying some of the streets and alleys for that purpose, and they maintained the system thereafter for the service of the citizens continuously until December, 1882, when they surrendered possession of it to the plaintiff, a corporation, in consideration of the receipt in exchange therefor of $ 3,600, in par amount of its capital stock, estimated to be of that value. At that time the number of patrons of the exchange was a few score, but the plaintiff, after obtaining possession, continued in the enjoyment of it uninterruptedly and without protest until shortly before the beginning of this action in January, 1903, or for a period of 20 years. During that time it reconstructed the entire system, extending it over additional areas and increasing the number of its patrons by nearly 400. Throughout this interval, its right so to do seems never to have been questioned, and its relations with the city authorities appear to have been friendly. In so doing, the company, with the knowledge and acquiescence of the city, expended large sums of money, so that the system is now concededly of the value of $ 25,000. It contracted with the plaintiff concerning the location of electric light wires, maintained by the city, so as to avoid interferences, and paid it an agreed compensation for the use of its poles for the support of wires for its fire alarm system, and continuously, from and after 1890, the city levied against and collected from it an annual occupation tax.

In December, 1902, the mayor and council adopted a resolution purporting to forbid the erection by the plaintiff of poles and wires on any part of the streets, avenues and alleys of the city not already so in use, and to prohibit it from replacing such structures in the public ways theretofore so occupied, when by decay or usage they should become deteriorated and unfit for the transaction of the business of the exchange. Notwithstanding this prohibition, the company did erect some poles and put up some wires which the city authorities, pursuant to this resolution, caused to be cut down and destroyed, and this action was begun to restrain them from the repetition...