People v. Eaton

• Decision Date: 18 May 1894
• Court: Michigan Supreme Court
• Parties: PEOPLE v. EATON.

59 N.W. 145

100 Mich. 208

PEOPLE v. EATON.

Supreme Court of Michigan

May 18, 1894

Error to circuit court, Barry county; Clement Smith, Judge.

Abijah Eaton was convicted of assault and battery, and brings error.

Wm. O. Lowden and Chas. G. Holbrook, for appellant.

A. A Ellis, Atty. Gen., and James A. Sweezey, Pros. Atty., for the People.

LONG. J.

Respondent was convicted of an assault and battery upon L. B. Bently. It appears that Bently, in company with three other men, were in the act of digging holes to set telegraph poles in the highway in front of the farm of defendant. Defendant forbade them doing so, and ordered them to desist, which they refused, whereupon he pushed Bently down a slight embankment. It is not claimed that any serious harm was done him, or that respondent used any more force than necessary to stop the work. It was claimed on the trial that Mr. Bently and his companions represented, and were the employes of, a certain company, known as the Barry County Telegraph Association, incorporated under the provisions of chapter 101 of Howell's Statutes, and that they informed respondent that they were erecting a telegraph line along the highway and were acting for an association, and that the state gave them the right to do so. The articles of association of the company were not filed with the secretary of state until after the assault complained of, but they had been signed in due form of law, and were subsequently acknowledged and filed as provided by law. The statutes of this state relating to electric telegraph lines, so far as they appear to be material to this case, may be briefly summarized as follows Chapter 100, How. St. is, "An act authorizing any person to construct lines of electric telegraph in the state of Michigan." It is Act No. 4 of the Session Laws of 1847, as amended in 1849 and 1873. Section 1 provides: "That any person or persons may be and they are hereby authorized to construct and maintain lines of electric telegraph, together with all necessary fixtures appurtenant thereto, from point to point upon and along any of the public roads, highways *** of this state, or upon or over the land of any individual-the owner of any land through which said telegraph line may pass, and railroad corporation on whose right of way the same may be constructed, having first given consent: provided, that the same shall not in any instance be so constructed as to incommode the public in the use of said roads, highways, railroads or bridges. ***" Chapter 101, being Act No. 59 of the Session Laws of 1851, as amended in 1863, 1873, and 1875 is, "An act to authorize the formation of telegraph companies." Section 5 provides that: "Such association is authorized to enter upon, and construct, and maintain lines of telegraph through along and upon any of the public roads and highways, or across or under 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: provided, that the same shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters: and provided further, that this act shall not be construed to authorize any such association to injure, deface, tear, cut down or destroy any tree or shrub planted along the margin of any highway in this state, or purposely left there for shade or ornament. ***" Section 6 provides for the appointment of commissioners by the circuit court to assess damages, on the application of any person through whose land said lines shall pass, who shall consider himself aggrieved or damaged thereby.

The principal question in this case is whether these acts conflict with article 15, � 9, of the constitution, which provides, "The property of no person shall be taken by any corporation for public use without compensation being first made or secured in such manner as may be prescribed by law." Is the placing of telegraph poles along a public highway an additional servitude upon the land of the adjacent proprietor? Public highways are under legislative control. They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon the use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use it is open to all suitable methods. Cooley, Const. Lim. p. 588. It has been settled in this state that lands to be taken or granted for public highways are so taken or granted for all the purposes for which they may be used for the benefit of the public, for the passing or repassing of travelers thereon, for the transportation of passengers by stage coach, omnibus, or street cars propelled by horses, steam, or electricity, and that the laying of tracks for such...