Osborne v. Auburn Tel. Co.

• Decision Date: 01 November 1907
• Citation: 82 N.E. 428,189 N.Y. 393
• Parties: OSBORNE v. AUBURN TELEPHONE CO.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 393

82 N.E. 428

OSBORNE

v.AUBURN TELEPHONE CO.

Court of Appeals of New York.

Nov. 1, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Eliza W. Osborne against the Auburn Telephone Company. Judgment for defendant (111 App. Div. 702,97 N. Y. Supp. 874), and plaintiff appeals. Reversed.

John Van Sickle, for appellant.

E. C. Aiken and Hull Greenfield, for respondent.

HAIGHT, J.

This action was brought to enjoin and restrain the defendant from entering upon the lands of the plaintiff in Fitch avenue, for the purpose of digging holes and erecting telephone poles for the stringing of wires, and also for damages, which had been sustained, to the shade trees.

The defendant was a domestic corporation organized under the laws of the state of New York for the purpose of maintaining and operating a telephone exchange in the city of Auburn and vicinity, and had been granted a franchise by the city to use the streets for the erection of poles and the stringing of wires. The plaintiff was the owner of a parcel of land situate at the corner of Fitch avenue and South street, in that city. Formerly one Abijah Fitch was the owner of the lands on which Fitch avenue, 100 links in width, had been laid out, and on or about the 13th day of April, 1865, as the court has found, he conveyed to the plaintiff the lands described as follows: ‘All that tract of land in the city of Auburn, bounded and described as follows, beginning in the west line of South street at a point 20 rods south of the southeasterly corner of land now owned and occupied by William C. Beardsley, running thence westerly on the south line of land now owned by party of second part 76 rods and 6 links to the westerly line of the farm of the late Joseph C. Richardson, deceased, thence southerly 51 1/2 links to the center of Fitch avenue; thence east along the center of said avenue 76 rods and 6 links to the west line of South street; thence north on the line of said South street to place of beginning, being 51 1/2 links; reserving 50 links in width the whole distance from east to west for a road and which now constitutes the north half of Fitch avenue, the whole distance of said Richardson farm which has been opened to the public.’ We here have first an absolute conveyance to the plaintiff of the fee of the north half of Fitch avenue, then follows a reservation for a road which had then been opened to the public. We think that this conveyance operated to vest in the plaintiff the fee, subject, however, the the easement of the public thereon for the purpose of a road or highway. Myers v. Bell Telephone Co., 83 App. Div. 623,82 N. Y. Supp. 83.

We are thus again presented with the question as to whether the erection and maintaining of telephone and telegraph poles in the street is an additional burden upon the fee in which compensation must be made to the owner. The answer to this question depends upon the further question as to whether the maintaining of telephone and telegraph poles for the purpose of stringing wires thereon is a street use and deemed to be within the grant of the lands for highway purposes. This question was distinctly answered in the negative in the case of Eels v. American T. & T. Co., 143 N. Y. 133, 38 N. E. 202,25 L. R. A. 640, and again in Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092,43 L. R. A. 672. In the latter case we called...