Roake v. Am. Tel. & Tel. Co.

• Decision Date: 13 February 1886
• Citation: 2 A. 618,41 N.J.E. 35
• Parties: ROAKE v. AMERICAN TELEPHONE & TELEGRAPH CO. and others.
• Court: New Jersey Court of Chancery

2 A. 618

41 N.J.E. 35

ROAKE

v. AMERICAN TELEPHONE & TELEGRAPH CO. and others.

Court of Chancery of New Jersey.

February 13, 1886.

Bill for injunction. On order to show cause. On bill and affidavits annexed, answer of the company, and affidavits on the part of the defendants.

Cortlandt Parker, for complainant.

Wallis & Edwards, for the City of Bayonne.

M. Eggleston, for the company.

THE CHANCELLOR. The complainant is the owner of a lot of land on Avenue E in the city of Bayonne, and the bill is filed to restrain the telephone and telegraph company from erecting its poles upon the land in the avenue between the front line of his lot and the middle of the avenue, and from stretching its wires over that land upon its poles. The bill states that the land in the avenue was dedicated to public use while the place was under township government and before the city was incorporated, and it claims that the fee in the before-mentioned land in the avenue in front of the complainant's lot to the middle of the avenue is in him. The company is acting under an agreement with the city by which the latter, in consideration of one dollar and certain covenants and agreements on the part of the former, gives to it license to erect poles and stretch its telephone wires on and along certain designated avenues and streets of the city, including Avenue E; but the agreement, among other things, provides that the company shall get permission from the landowners before putting down poles in front of their lots. In consideration of the license the company agrees to furnish certain telephone facilities to the police and fire departments of the city. It appears that the company does not propose to erect poles on the land claimed by the complainant, but does propose to stretch its wires above that land upon poles set at each side of it but not upon it. The present application is for a preliminary injunction. To warrant the court in issuing such interlocutory prohibition the right of the complainant must be clear. The defendants insist that the city not only had the right to authorize the company to put its poles in the avenue and stretch its wires thereon, but was under legal obligation to do so, because the act of 1880 entitled "A supplement to an act entitled 'An act to incorporate and regulate telegraph companies,' approved April ninth, eighteen hundred and seventy-five," provides that whenever any telegraph or telephone company, organized under the original act or by virtue of any special act, shall apply to the common council or other legislative body of any incorporated city or town through which it is intended to construct its telegraph line for a designation of the streets in which the posts or poles of such company may be erected, it shall be the duty of such...