Palmer v. Larchmont Elec. Co.

• Decision Date: 28 February 1899
• Citation: 52 N.E. 1092,158 N.Y. 231
• Parties: PALMER v. LARCHMONT ELECTRIC CO.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 231

52 N.E. 1092

PALMER

v.LARCHMONT ELECTRIC CO.

Court of Appeals of New York.

Feb. 28, 1899.

Appeal from supreme court, appellate division, Second department.

Action in ejectment by William D. Palmer against the Larchmont Electric Company. From a judgment of the appellate division affirming a judgment for plaintiff (39 N. Y. Supp. 522), defendant appeals. Reversed.

Martin and Vann, JJ., dissenting.

Wm. Sam. Johnson, for appellant.

William Porter Allen, for respondent.

HAIGHT, J.

This is an action in ejectment to compel the defendant to remove its poles and wires from Palmer avenue, in front of the plaintiff's premises. The plaintiff is the owner of lands at the corner of Palmer and Rushmore avenues, in the town of Mamaroneck, Westchester county, and his fee extends to the center of the highways, subject to the easements of the public therein. The defendant is an electric corporation, organized under the transportation corporations law of this state, having for its objects the manufacture and use of electricity, for producing light, heat, or power, and in lighting streets, avenues, public parks and places, and public and private buildings of cities, villages, and towns within this state. On the 14th day of March, 1894, it obtained a grant from the town board of the town of Mamaroneck, giving it the right to construct and maintain suitable lines of wire for the purpose of conducting electricity to such points within the corporate limits of the town as may seem fit to the company, subject, however, to certain rules and restrictions specifically mentioned, among which were the requirements that the wires should be insulated, conducted upon poles of a specified size and uniformity, made straight and attractive in appearance, on which wires should be strung not less than 18 feet from the ground. The grant contained the further condition that the company shall furnish to the town $100 worth of light, free of charge, each and every year, and for every $1,000 worth of light bought by the town from the company an additional $100 worth of free light shall be furnished, the lights to be placed in such locations as shall be designated by the town board. Pursuant to this grant, the town contracted for certain lights at the rate of $22.50 per light per year; and thereupon, pursuant to the grant and contract, the defendant constructed its line of wire through Rushmore and Palmer avenues, locating a light on the corner of those avenues in front of plaintiff's premises, and erected on Palmer avenue, in front of his premises, two poles, on which the wires were strung, and which the evidence shows were necessary to enable the company to perform its contract with the town. This action was prosecuted to recover the possession of the lands occupied by these poles, and for damages.

The care, management, and control of the public ways devolve upon the local municipal government in which they are located; and it is the duty of the local government to maintain them in such condition that the public, by the exercise of due care, may pass over them in safety. In the darkness of the night, in crowded thoroughfares, light is an important aid, largely tending to promote the convenience, as well as the safety, of the traveling public. It is not only one of the uses to which the public ways may be devoted, but, in the case of crowded throughfares, a duty devolves upon the municipality of supplying it. In such cases it is one of the burdens upon the fee which must be borne as an incident to the public right of traveling over the way, and is deemed one of the uses for which the land was taken as a public highway. Johnson v. Electric Co., 54 Hun, 469, 7 N. Y. Supp. 716;Consumers' Gas & E. L. Co. v. Congress Spring Co., 61 Hun, 133, 15 N. Y. Supp. 624;Witcher v. Waterworks Co., 66 Hun, 619, 20 N. Y. Supp. 560, affirmed 162 N. Y. 626,37 N. E. 565;Hequembourg v. City of Dunkirk, 49 Hun, 550, 2 N. Y. Supp. 447;Sun Printing & Pub. Ass'n v. City of New York, 152 N. Y. 257, 265,46 N. E. 499;Van Brunt v. Town of Flatbush, 128 N. Y. 50, 56,27 N. E. 973.

As we understand the opinion of the learned court below, its views are in accord with our own as applied to public highways in cities and incorporated villages; but it reached the conclusion that the rule was different with reference to country highways, and that the density of population ought not to be made the test in determining the line in respect to easements which separate the urban from the rural districts. 6 App. Div. 12,39 N. Y. Supp. 522. That court was also of the opinion that this case was controlled by the case of Eels v. Telegraph Co., 143 N. Y. 133, 38 N. E. 202.Our views are somewhat different. We think the Eels Case is clearly distinguishable from that under consideration. In that case ejectment was brought to remove the poles of a telegraph and telephone company which were not used in any sense for a street purpose. It is urged that the wires might be used for the purpose of notifying the fire department of a municipality of the breaking out of a fire. Undoubtedly, and so far as they are used for that purpose, it clearly would be for a municipal purpose; but there is a broad distinction between a municipal purpose and a street purpose. The primary object of highways is for the public travel by persons and animals, and by carriages or vehicles used for the transportation of persons and goods, other than by railroads. Sewers drain the surface water from the highways, and thus relieve them from impairment and destruction. In this respect sewers are for a street purpose. In addition, they may drain also the abutting property and houses, and thus tend to promote the public health. In this respect they are for a municipal purpose. Water supplied by mains through the highways may be used for cleansing and sprinkling the streets. In this respect it is for a street purpose. It may be used by the abutting owners for cleansing and for domestic purposes, and is also used for the extinguishment of fires. In this respect it is for a municipal purpose. Light is, as we have seen, an aid to the public in the nighttime in traveling upon the highway. It is therefore used for a street purpose. All of the street purposes which we have referred to are clearly incident to the highway, and are deemed within the grant of lands for highway purposes whenever the necessity for these uses arises. Not so with telegraph and telephone wires. They in no way preserve or improve the streets, or aid the public in traveling over them.

We are thus brought to a consideration of the difference between urban and rural streets. That there is a distinction between such streets has long been recognized by the authorities; but a careful examination of the cases discloses the fact that the distinction arises out of the necessary requirements of the public in the use made of them. Dillon, in his work upon Municipal Corporations (volume 2, § 688), says: ‘In the author's judgment, the uses to which streets in towns and cities may legitimately be put are greater and more numerous than with respect to ordinary roads or highways in the country. With reference to these, all the public requires is the easement of passage and its incidents; * * * but, with respect to streets in populous places, the public convenience requires more than a mere road to pass over and upon them. They may need to be graded and brought to a level, and therefore the public or municipal authorities may not only change the surface, but cut down trees,...