Nelson v. American Tel. & Tel. Co.

• Decision Date: 27 February 1930
• Citation: 270 Mass. 471,170 N.E. 416
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: NELSON v. AMERICAN TELEPHONE & TELEGRAPH CO.

270 Mass. 471

170 N.E. 416

NELSON

v.AMERICAN TELEPHONE & TELEGRAPH CO.

Supreme Judicial Court of Massachusetts, Berkshire.

Feb. 27, 1930.

Appeal from Superior Court, Berkshire County; Bishop, Judge.

Suit by George O. Nelson against the American Telephone & Telegraph Company. From the decree, plaintiff appeals. Reversed and remanded, with directions.E. D. Getman, of North Adams, for appellant.

F. M. Myers, of Pittsfield, for appellee.

PIERCE, J.

This is a bill in equity brought by the owner of land to compel the defendant to remove certain poles and wires from his land and for the assessment of damages. The answer of the defendant, a corporation duly organized by law with a usual place of business in Massachusetts, in part is a general denial, in part a claim of an easement by grant to maintain a line of poles and connections as said line of poles has been constructed and maintained for a period of more than thirty years; and the further answer ‘that in reliance upon the grant of right of way originally made to the Respondent to maintain said poles and telephone line on said land and in reliance upon the permission to maintain said poles and telephone line, * * * the Respondent has expended large sums of money in the erection of its line over said land and in the construction of lines connected therewith; that to now remove said telephone poles and telephone line and wires from the land of the Petitioner would subject the Respondent to great inconvenience and loss incommensurate with the benefit to the Petitioner, and that to compel the Respondent to remove the same, as aforesaid, would operate oppressively and inequitably; that the damage to the Petitioner, if any, by the continued maintenance of said line and the continued use of said right of way would be slight, and of no consequence, and that the Petitioner has, for a long period of time, acquiesced in and assented to the maintenance of said telephone line and wires by the Respondent, and its use thereof in accordance with the terms of the grant of right of way, and that the Petitioner's own laches prevents him from maintaining his Bill of Complaint.’

By agreement the case was referred to a master to hear the parties and their evidence and report his findings to the court, together with such facts and questions of law as either party may request, and so much of the evidence as either party may request in order to present questions of law. In accordance with the order of reference a hearing was had by the master and a report made of his findings to the court. ‘Neither party has asked that any of the evidence be reported ‘in order to present questions of law.’'

The master, in substance, finds the following facts: The plaintiff is the owner of a farm in Florida, Massachusetts, through which the defendant maintains a line of telephone poles and wires. There are thirty-two poles spaced at practically uniform intervals, and affixed to each pole near its top are four ten-foot cross arms, to which are attached thirty-four wires for the transmission of messages by telephone and by telegraph; a few of the poles are reinforced by guy wires, made fast to objects affixed to the soil; and, with the exception of two additional wires which were strung from pole to pole in 1923, there has been no new construction as distinguished from general maintenance since the plaintiff acquired title in 1916. The strip of land on which these poles stand is thirty-five hundred feet in length, with an average width of thirty feet, and fully one-half of it was tree-bearing before being cleared for the defendant's use. The places where the poles stand and the dimensions have remained unchanged from the beginning.

On June 15, 1893, the plaintiff's father, Wallace C. Nelson, then owner of the locus, signed and delivered to the defendant a document which was without seal or acknowledgment and read as follows: ‘$20-Received of the American Telephone & Telegraph Co. of Massachusetts, Twenty dollars in consideration of which I hereby grant unto said Company, its successors and assigns, the right to construct, operate and maintain its lines over and along the property which I own or in which I have any interest in the Town of Florida, County of Berkshire and State of Massachusetts, including the necessary poles and fixtures along the roads, streets, or highways adjoining the property owned by me in said town, in full payment for such right, and in full satisfaction for the trimming of any trees along said lines necessary to keep the wires cleared at least eighteen inches, and with the right to set the necessary guy and brace poles, and attach to trees the necessary guy wires.’ Upon the delivery of this document the defendant entered upon the locus and ran a line of poles and wires from end to end of the farm. Wallace C. Nelson retained title to the premises for the next seventeen years, and there is nothing in the evidence before the master ‘to show or to suggest’ that he did not concur in the selection of the locus taken or in the uses then or subsequently made of it, or that he regarded any act committed by the defendant on his property as objectionable or unlawful. In so far as the reference in the document to roads, streets or highways, properly interpreted means that the poles were to follow the highway which crossed the farm, the master finds that Wallace C. Nelson acquiesced in the choice of a different site, for not one of the poles was placed upon or along the highway, and the course of the poles is the same now as it was when they were first erected.

In 1910, Wallace C. Nelson parted with all his right, title and interest in and to this farm beyond a limited use for his natural life. In that year the New England Power Company bought such water and diversion rights as Wallace C. Nelson had owned in the Deerfield river, and a transmission line right of way over, across and upon said farm, and Benjamin A. Nelson, a son of Wallace C. Nelson, became the owner of the farm after its title had been thus diminished and had been registered by the land court. In none of the instruments effecting these numerous transfers is the defendant mentioned as an encumbrancer of the premises or in any other manner. In April, 1916, Benjamin A. Nelson conveyed the farm subject to existing encumbrances to the plaintiff, who has since remained seised and possessed of it. The defendant does not claim that when Wallace C. Nelson alienated this property it obtained from the new owner, or had obtained from any subsequent owner, any express license to maintain its line where it now is.

Some time between 1893 and 1896 the plaintiff, then a resident of Rhode Island, revisited the farm and on that occasion discovered, if he did not already know, that a line of poles and wires had been placed upon it. In 1903, he returned to Massachusetts to live with his father on the farm and has since remained on the estate. For a period of thirty years prior to the commencement of this suit he knew of the existence of this line, and knew that it was with his father's permission that the defendant entered upon his farm, there set up and, until his death in 1912 or 1913, maintained its poles and wires.

After April 11, 1916, the day the land court issued to the plaintiff a duplicate certificate of title to this farm wherein no reference is made to any rights of the defendant, the defendant continued to keep its property intact and in repair and the locus open as it had theretofore done. Every other year between April 11, 1916, and May 15, 1926, the date of the filing of the bill of complaint, it cut down or trimmed the trees and brush for an average width of thirty feet. Between the same dates it replaced any poles, wires or cross-arms that so required. During all these years the plaintiff was continuously on the premises and aware of what was taking place, and he did not object to the defendant going on his land with teams and trucks save in one instance when he remonstrated against the cutting of trees growing near the edge of the locus. Neither he nor any intervening owner between his father and himself ever notified the defendant or any one representing it that he objected to a continuance of its fixtures upon the locus, or, prior to September 8, 1923, made any claim for compensation for injury done to, or for use of, his land.

On September 8, 1923, he sent a letter to the treasurer of the defendant company which stated, in substance, that the defendant had maintained its poles and lines without remuneration to the plaintiff since 1910 and expressed a desire that the defendant would take the matter up at an early date and make some kind of a settlement. In consequence of this letter and demand, in November, 1923, a representative of the defendant called upon the plaintiff in Florida, and upon his brother in Keene, New Hampshire, the next day. The talk in these interviews, like the letter, related to the question of remuneration for past years. The plaintiff testified that then was his first knowledge that the defendant claimed a right over his land, but the master finds, in view of the repeated acts of the defendant in looking after its property on the locus, that it cannot be said that the plaintiff was without notice of the defendant's pretensions previous to the interview of November, 1923.

The master further found that the costs in labor and materials alone of re-routing this part of the defendant's line would not exceed $4,203, unless extensive cutting of heavy timber or trees were encountered; that the new line when completed would...