People's Telephone & Telegraph Co. v. Berks & Dauphin Turnpike Road
| Decision Date | 27 May 1901 |
| Docket Number | 90 |
| Citation | 49 A. 284,199 Pa. 411 |
| Parties | People's Telephone and Telegraph Company v. Berks and Dauphin Turnpike Road, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 18, 1901
Appeal, No. 90, Jan. T., 1901, by defendant, from decree of C.P. Lebanon Co., Equity Docket, 1899, No. 4, on bill in equity in case of the People's Telephone and Telegraph Company v. The President, Managers and Company of the Berks and Dauphin Turnpike Road. Affirmed.
Bill in equity for an injunction.
EHRGOOD P.J., filed the following opinion:
The plaintiff is a corporation, duly incorporated on March 29 1897, under the general corporation act, approved April 29, 1874, and its supplements, "for the purpose of erecting and constructing, maintaining, purchasing, leasing and operating telephone and telegraph lines and exchanges in and through the city of Allentown, and county of Lehigh and vicinity, and the other several counties in the state of Pennsylvania, with the right to make connections for the purpose of its business with other similar lines in the several counties of said state and other states and for the transaction of any business in which the transmission of electricity over and through wires or cables may be applied for any useful purpose."
By ordinance duly passed and approved September 3, 1897, the proper municipal authorities of the city of Lebanon gave permission to the plaintiff company to erect poles and run wires on the same over the streets, lanes and alleys of the said city of Lebanon, and during the year 1898, in the location of its lines, the plaintiff company proceeded to construct a line through the city and county of Lebanon.
The defendant company is a corporation, duly incorporated under and by virtue of the act of general assembly of the commonwealth of Pennsylvania, approved March 2, 1805, and its several supplements, for the purpose of making an artificial road from the Schuylkill river at Reading, in the county of Berks, to or near Hummelstown in the county of Dauphin, which it located and constructed and since its completion maintains and operates as a public highway, and which traverses the said city and county of Lebanon.
The plaintiff company has located a line, connecting with their constructed line in the said city of Lebanon, from a point in the township of North Lebanon, near the corner of Front street, in the said city of Lebanon, and the Berks and Dauphin turnpike road, to the village of Avon in said township, close to the fence on the north side of said turnpike road, but not on the traveled part, nor on the roadbed thereof, and in line with the poles of the Western Union Telegraph Company. The poles proposed to be erected by the plaintiff company to be ten feet higher than those of said telegraph company.
The plaintiff company proceeded to erect its poles on the line located as above set forth. The first pole was put up at the corner of said turnpike road and the first road running north beyond the railway crossing at Avon, and other poles were distributed along said located line. On December 20, 1899, the defendant company cut down and removed the said pole erected by the plaintiff, and also removed a number of other poles which the plaintiff intended to use in the construction of its located line, and the defendant company has expressed its determination and intention to resist the erection of any poles along the line of said turnpike road located as aforesaid, and has threatened to cut down and remove any poles which the plaintiff may erect, and which are necessary for the purpose of operating said telephone line.
The erection and construction of the proposed telephone line on the line as located on the north side of said turnpike road by the plaintiff company will not incommode the public use and travel on the said turnpike.
The authority under which the plaintiff proposes to erect its telephone line on defendant company's turnpike road is statutory, and the statutes are applicable: The general corporation act of April 29, 1874, which in section 33 provides as follows: The charter for the incorporation of a company to maintain a telegraph line shall in addition to what is hereinbefore required, also state:
1. The general route of the line of telegraph.
2. The points to be connected.
Clause 1. Such incorporation shall be authorized, when incorporated as hereinbefore provided, to construct lines of telegraph along and upon any of the public roads, streets, lands or highways, or across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers or abutments for sustaining the cords or wires of such lines, but the same shall not be so constructed as to incommode the public use of said roads, streets or highways, or injuriously interrupt the navigation of said waters; and this act shall not be so construed as to authorize the construction of a bridge across any of the waters of this state.
Section 3 of the Act of May 1, 1876, P.L. 90, which provides: That in lieu of the requirements of the first paragraph of the 33d section of the act to which this is supplementary, approved April 29, 1874, the charter for the incorporation of companies under the provisions of this act shall state:
1. In what counties in this state it is proposed to carry on business:
2. In what other states it is proposed to carry on business.
And the 4th section of said act as amended by the Act of June 25, 1885, P.L. 164, which provides: That before the exercise of any of the powers given under this act, application shall first be made to the municipal authorities of the city, town or borough in which it is proposed to exercise said powers, for permission to erect poles or run wires on the same, or over or under any of the streets, lanes or alleys of said city, town or borough, which permission shall be given by ordinance only, and may impose such conditions and regulations as the municipal authorities may deem necessary.
The municipal authorities as contemplated by the act of assembly, whose permission must be obtained by ordinance before a telephone company can exercise any of the powers given under said act, are such as have power to pass ordinances, and do not include individuals, townships and incorporated towns nor turnpike companies.
The provisions of these several acts of assembly apply to telephone companies as well as...
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