Queen City Telephone Co. v. Cincinnati

• Decision Date: 25 November 1905
• Docket Number: 9334
• Citation: 76 N.E. 392,73 Ohio St. 64
• Parties: The Queen City Telephone Co. v. The City Of Cincinnati.
• Court: Ohio Supreme Court

76 N.E. 392

73 Ohio St. 64

The Queen City Telephone Co. v. The City Of Cincinnati.

No. 9334

Supreme Court of Ohio

November 25, 1905

Action in probate court by telephone company - Concerning mode of constructing its telephone lines - Telephone company must prove incorporation, etc. - Petition defective as to differences between corporation and city - Does not state facts justifying order of judgment, when - Power of probate court to grant rights to telephone company - Municipal law - Pleadings.

1. In an action brought in the probate court by a telephone company against a city asking that the court direct in what mode plaintiff may construct its telephone line along the streets of such city, it is incumbent upon the company, as an incident to action by the court in its favor, to prove its incorporation according to law, including the due and legal election of directors; and, upon a plea of the general issue by the defendant, the burden is upon the company to establish such claim.

2. A petition in such case which shows no specific questions of difference between the corporation and the municipal authorities, but alleges only in that behalf that they have failed to agree on the mode of use of the streets, and prays for a general judgment directing in what mode the plaintiff may construct its telephone lines along the streets, does not state facts Justifying any order or judgment in its favor.

3. The statutes of Ohio do not confer power on the probate court to grant to a telephone Company the right to put its wires and apparatus in conduits under the streets of a city in the absence of consent by the municipal authorities.

The controversy out of which the present error proceeding arises originated in the probate court of Hamilton, by the filing January 26, 1904, of a petition by the Telephone Company against the City, averring in substance that the plaintiff is a corporation organized under the laws of the state of Ohio for the purpose of constructing, operating and maintaining lines of telephone and telegraph, with the necessary poles, conduits, wires and appurtenances, in the city of Cincinnati; that on the twelfth day of October, 1903 the plaintiff made application to the council of the City of Cincinnati, to prescribe the manner of use by it of the streets, alleys, public ways, and other public property of the City, in constructing plaintiff's lines of telephone and telegraph, and transmitting at the same time the form of an ordinance that the plaintiff was willing to accept and bind itself to perform and conform to; that on the twenty-fifth day of January, 1904, a committee to whom the application had been referred reported to the council that there was not room in the streets of the City for the accommodation of the lines asked for and that it was inexpedient to make any grant or agreement, which report was by the council on the date above named adopted, and thereupon the council finally rejected the application of plaintiff and so the City and plaintiff have failed to agree on the mode of use of the streets, alleys, public ways, and other public property of the City in constructing plaintiff's lines of telephone and telegraph, although plaintiff has been and is willing to accept the permission upon any terms and conditions prescribed by the council that may be proper and lawful for it to prescribe, or to accept any amendment which might be lawful and proper to the proposal presented by plaintiff. Then follows a prayer that the court direct in what mode plaintiff may construct its telephone and telegraph lines along the streets, alleys, public ways and public property of the City so as not to incommode the public in the use of the same.

To this petition the City interposed a motion to make more definite by setting out what streets, etc., plaintiff proposes to occupy with the poles, wires and underground conduits; by setting out also the exact location of its proposed poles, wires, conduits, and other structures, and by stating further specifically the character of the poles and wires to be erected and the conduits and other structures proposed to be put upon or under the streets, etc.

Thin motion, and likewise a motion asking that the cause be consolidated with actions by three other companies then pending in the probate court for like relief, being overruled, the defendant answered and admitted that the plaintiff presented to the council the ordinance set forth in the petition and asked council for the consideration and passage thereof. Admitting that the council adopted the report of the committee referred to, and refused to pass the ordinance, the answer further averred that at the time the ordinance was so presented three other companies, to-wit: The Cincinnati Telephone Company, The Interstate Telephone Company, and The Fitzsimmons Telephone Manufacturing Company, presented to council for passage ordinances fixing the mode of like use of the streets for each, which were all referred to the committee and in pursuance of its report, council refused to pass any of said ordinances, and thereupon plaintiff and each of the three other companies named filed applications in the probate court asking said court to fix the mode of use of the streets, etc., for telephone purposes, all of which actions are still pending. The answer further alleged that "all the streets in the City of Cincinnati, in the business portion thereof, and the majority of said streets in the residence portion and the outlying districts, have been permanently improved, either with granite, asphalt, brick, bowlder or macadam; that in the various streets and highways of said City there is now an underground network of telephone, telegraph, electric light conduits, gas, sewer and water pipes, with the various manholes and fire cisterns used in connection therewith; that at the intersection of the principal streets such conduits, pipes, manholes and other structures now occupy so great a proportion of the streets that it is dangerous, if not impossible, to permit a further use of the streets for such purposes; that in said City it is the uniform custom to permit property owners to utilize the space underneath the sidewalk as far as the curb for the purposes of their buildings; that in the continued growth of said city such space as is not now used for underground purposes will be necessary to be used in the extension of the system of underground purposes by the City and other persons now having a right to use the streets for such purposes.

"This defendant further says that The Cincinnati & Suburban Bell Telephone Company, a corporation under the laws of Ohio, now owns and operates a telephone exchange and system of wires for telephone purposes through conduits and upon poles in the streets and highways of the City of Cincinnati, under an agreement with said defendant for flee maintenance and use of telephone conduits and poles; that said Company occupies all of the business portion and a large part of the residence portion with underground conduits, to-wit, all that portion between Freeman and Eggleston avenue, and the Ohio river and McMicken avenue, together with many other thoroughfares leading in the suburbs of the City, and that with these facilities and pole lines in outlying portions it is able to and it has supplied all the demands made or existing within the City for telephone service; that no further occupancy of the streets or highways is at all necessary for the purpose of such service, and that further occupancy for the same would incommode the public in the use of such streets and highways, and would cause additional expense to the residents and business concerns of the City; and if the plaintiff were permitted to occupy and should occupy the streets and highways of the City for telephone purposes, and much more if the other applicants aforesaid or any future applicants were permitted so to do, and should occupy said streets and highways, such occupancy would, in operation and effect, divert the said streets and highways, especially in the business portions of the City, from their original and legitimate purposes and uses, and prevent the further growth and extension of the uses to which the said City of Cincinnati ought to and will be compelled to apply them; and that under these circumstances and facts it was impracticable, as in substance and effect stated in the report above set out, for the city to formulate the terms of or to enter into an agreement with the plaintiff, or the other applicants above mentioned, for the occupancy of its streets and highways for further telephone use and service, and that in consequence it did not unreasonably refuse to adopt the ordinance which plaintiff presented and sought to have passed either as the ordinance was written or as it could reasonably be amended. By reason thereof, said Cincinnati & Suburban Bell Telephone Company claims an inter- est in the streets and highways of said City superior to any right which plaintiff may acquire.

"This defendant denies all other allegations in plaintiff's petition not herein expressly admitted.

"Wherefore this defendant prays that said The Cincinnati Telephone Company, The Interstate Telephone Company, The Fitzsimmons Telephone Manufacturing Company and The Cincinnati & Suburban Bell Telephone Company be made parties herein, and be required to set up their several claims to rights in the streets of the City of Cincinnati, and for all other and proper relief."

The reply admitted that the application of the three other companies named in the answer, accompanied by ordinances similar to that of plaintiff, were referred by council to the committee along with that of plaintiff; that the committee made the report alleged, and that council refused to pass...