Readfield Tel. & Tel. Co. v. Cyr

• Decision Date: 22 May 1901
• Citation: 95 Me. 287,49 A. 1047
• Parties: READFIELD TELEPHONE & TELEGRAPH CO. v. CYR et al.
• Court: Maine Supreme Court

49 A. 1047

95 Me. 287

READFIELD TELEPHONE & TELEGRAPH CO.

v. CYR et al.

Supreme Judicial Court of Maine.

May 22, 1901.

(Official.)

Report from superior court Kennebec county.

Action in trespass by the Readfield Telephone & Telegraph Company against Frank B. Cyr and another for tearing down and removing telephone lines claimed to have been bought by plaintiff as personal property on execution sale. Case reported. Judgment for plaintiff.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

L. C. Cornish and E. O. & F. E. Beane, for plaintiff. W. C. Eaton, for defendants.

POWERS, J. On November 4, 1898, the telephone line of the Dirigo Telephone Company, located in the public highway, and running from Mt. Vernon village, in Mt. Vernon, to Chandler's Mills, in Belgrade, with the poles, wires, and insulators on the same, was sold as personal property on an execution against said company, and afterwards conveyed by the purchaser to the plaintiff corporation, which then strung a second wire upon said poles. The defendants, acting as the agents of the Dirigo Company, in October, 1899, tore down a part of the line, insulators, and brackets put up by the plaintiff, and for the injury so done this action of trespass de bonis is brought. The only question involved is whether the telephone line of the Dirigo Company, as between debtor and creditor, was personal property at the time of its seizure and sale on execution.

There is no universal test by which it can be determined whether a chattel has become so affixed to the realty as to become accessory to it and form a part and parcel of it The manner and extent of physical annexation has been declared an uncertain and unsatisfactory criterion, and, while it would be impossible to reconcile all the cases upon this subject, yet the modern and most approved rule appears to be to give special prominence to the intention of the party making the annexation. Iron Co. v. Black, 70 Me. 473, 35 Am. Rep. 346; Parsons v. Copeland, 38 Me. 537: Tolles v. Winton, 63 Conn. 440, 28 Atl. 542; Fifield v. Bank, 148 Ill. 163, 35 N. E. 802; Pope v. Jackson, 65 Me. 162; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249; Manufacturing Co. v. Barnard, 84 Mich. 632, 48 N. W. 280; Erdman v. Moore, 58 N. J. Law, 445, 33 Atl. 958; McRea v. Bank, 66 N. Y. 489. This rule does not apply to cases in which a party makes improvements and permanent erections without right as between him and the owner of the soil. In such case the intention to preserve the same as property separate and apart from the freehold cannot avail, no matter how plainly that intention may be manifested. Many other apparent exceptions will be found to involve no real conflict with the rule above stated, when we remember that the intention, which is material, is not the hidden, secret intention of the party making the annexation, but the intention which the law deduces from such external facts as the structure and mode of attachment, the purpose and use for which the annexation has been made, and the relation and situation of the party making it.

In the case before us, the poles were imbedded in the soil, but could be easily removed without any particular injury to the realty or impairment of its value for any of the uses to which it was suited. The whole line was adapted to the use of that part of the realty with which it was connected, but the poles, wires, and insulators could be easily removed and used in the same business elsewhere. Under these circumstances, it is especially important to ascertain what right or interest the Dirigo Company, the owner of these chattels, had in the realty to which it annexed them, in order to determine whether the intention existed thereby to make them permanently a part of the freehold. A different intention may well be inferred from annexations made by a tenant, or mere licensee, than when the same acts are done by the owner of the freehold. Cooley, Torts (2d Ed.) 501.

The beneficial use of the soil in our highways has been appropriated by the public for public purposes, but the property in the soil still remains in the owner of the adjoining land, who may use it for any purpose, above or below the surface, which does not injuriously interfere with public uses. A telephone is a public use, and the legislature, by virtue of its power of control over the public roads and highways of the state, may grant to a telephone company the authority to erect its lines along or upon such roads and highways, or it may delegate that power to the municipal officers of the several municipalities, as has been done in this state by St 1885, c. 378. A telephone company, however, cannot construct its line along the highway at its own pleasure. It is forbidden to do so without first obtaining a written permit from the municipal officers, "specifying where the posts may be located, the kind of posts, and the height at which and the places where the lines may be ran." St. 1885, c. 378, § 2. Nor is this permission, when once obtained, final and irrevocable, and the use so granted subject to be determined only by the will of the company or the discontinuance of the highway. The same section further provides that "after the erection of the lines, having first given such company, persons, associations, or their agents, opportunity to be heard, the municipal officers may direct any alteration in the location or erection of said posts." These are comprehensive terms. Telephone lines, though affected with a public use, are operated for private gain. Nothing is paid for the valuable privilege of occupying and using the soil of the public roads and highways. The authority to fix the location of the posts, in the first instance, has been wisely given to the municipal officers, and, if wisely exercised, the location will be made with a view to existing and probable future conditions. Yet conditions are constantly changing, and, in the growth and improvement of our municipalities, the time may come when it may be desirable to after the location of one or all of the posts of the line from one side of the street to the other, or from one street to another. What at one time was a suitable location may become unsightly, inconvenient, out of harmony with the surroundings, and the public interest be best served by a change of location. We believe that the legislative intention was to confer upon the...