Postal Tel. Cable Co. v. Eaton

• Decision Date: 22 December 1897
• Citation: 49 N.E. 365,170 Ill. 513
• Parties: POSTAL TEL. CABLE CO. v. EATON.
• Court: Illinois Supreme Court

170 Ill. 513

49 N.E. 365

POSTAL TEL. CABLE CO.

v.EATON.

Supreme Court of Illinois.

Dec. 22, 1897.

Appeal from circuit court, Madison county; B. R. Burroughs, Judge.

Ejectment by Henry A. Eaton against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. Affirmed.

William P. Bradshaw, Loesch Bros. & Howell, and Frank J. Loesch, for appellant.

Travous & Warnock, for appellee.

CRAIG, J.

This was an action of ejectment brought by Henry A. Eaton, appellee, against the Postal Telegraph Cable Company, for the purpose of compelling the removal of the defendant's line of telegraph poles from a public highway known as the ‘Edwardsville and Hillsboro Road,’ which was located over and upon appellee's land. It appears from the record that the Board of Trade Telegraph Company in 1882 constructed its telegraph line over a public highway known as the ‘Edwardsville and Hillsboro Road’ by the consent of the board of supervisors of Madison county, under a resolution of the board adopted at a regular meeting, upon the request of the telegraph company. The resolution granting the right contained the following conditions: Said line shall start at or near New Douglas, and run in a southwest direction, and terminate at or near Venice, in said county, the poles to be set not over 2 1/2 feet from the margin of the road, not to interfere with ditches and water drains; poles to be 18 feet high, and well set and braced, and the wire to be kept tight; and they are to establish but one line, and by them securing the right of way in the several townships. The telegraph company went on and constructed its line under this resolution of the board of supervisors, without, however, obtaining consent or right of way from the landowners along the highway. The Board of Trade Telegraph Company operated its line until 1886, when the line was leased to appellant, the Postal Telegraph Cable Company, and that company has continued to operate the line since that time under its lease. It is not denied that a telegraph company organized under the laws of this state may, under our eminent domain act, acquire property upon which it may erect its telegraph line. Indeed, section 2 of the act of 1874 makes provision for such companies to acquire property as follows: ‘Every such company may enter upon any lands for the purpose of making surveys and examinations with a view to the erection of any telegraph line, and take and damage private property for the erection and maintenance of such lines, and may, subject to the provisions contained in this act, construct lines of telegraph along and upon any railroad, road, highway, street or alley, along or across any of the waters or land, within this state, and may erect poles, posts, piers or abutments for supporting the insulators, wires and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the railroad, highway, street or alley, or interrupt the navigation of such waters.’ Section 4 of the same act provides: ‘No such company shall have the right to erect any poles, posts, piers, abutments, wires or other fixtures of their lines along or upon any road, highway or public ground outside the corporate limits of a city, town or village, without the consent of the county board of the county in which such road, highway or public ground is situated, nor upon any street, alley or other highway or public ground within any incorporated city, town or village, without the consent of the corporate authorities of such city, town or village.’ Hurd's Rev. St. p. 1052.

It is contended in the argument that, the county board having given consent to occupy the highway, and the consent having been acted upon, the owner of the fee of the highway cannot maintain an action of ejectment. Where a highway is laid out over lands outside of an incorporated city, town, or village, the public acquires only an easement of passage over the lands, with the rights and incidents thereto, while the owner of the land over which the road is laid out retains the fee and ownership of everything connected with the soil for all purposes not incompatible with the right of the public to a free and unobstructed use of the road as a public highway. Town of Palatine v. Kreuger, 121 Ill. 74, 12 N. E. 75. Elliott, in his work on Roads and Streets (page 519). in the discussion of the question, says: ‘The abutter has the exclusive right to the soil, subject only to the easement of the right of passage in the public and the incidental right of properly fitting the way for use. Subject only to the public easement, he has all the usual rights and remedies of the owner of the freehold. He may sink a drain under the road; * * * he may mine under it. The herbage and trees growing thereon belong to him.’ At pages 535 and 536 the author says: ‘He may maintain trespass against one who unlawfully cuts and carries away the grass, trees, or herbage, and even against one who stands upon the sidewalk in front of his premises and uses abusive language against him in refusing to depart. He may also maintain ejectment against a railroad company which has placed its track upon his side of the street without paying or tendering damages therefor, or against an individual who has wrongfully and unlawfully encroached thereon.’ In Cole v. Drew, 44 Vt. 49, in considering the question, the court said: ‘The owner of the soil over which a highway is located is...