Southern Bell Telephone & Telegraph Co. v. Francis

• Citation: 19 So. 1,109 Ala. 224
• Court: Supreme Court of Alabama
• Decision Date: 14 February 1896
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. FRANCIS. SAME v. ALLEN ET AL.

19 So. 1

109 Ala. 224

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. FRANCIS.

SAME v. ALLEN ET AL.

Supreme Court of Alabama

February 14, 1896

Appeal from city court, of Birmingham; W. W. Wilkerson, Judge.

Actions of trespass by Dora P. Francis and by Susan J. Allen and others, respectively, against the Southern Bell Telephone &amp Telegraph Company, consolidated. From judgments in each case in favor of plaintiffs, defendant appeals. Reversed.

Hewitt Walker & Porter, for appellant.

Talioferro & Houghton, for appellee Francis.

Altmen & McQueen, for appellee Allen.

THORINGTON J.

These two cases arise from substantially the same state of facts and were submitted together in this court. Appellees, being the owners of property abutting on a public street in the city of Birmingham, brought suit in trespass against appellant to recover damages for injury to their property resulting from the act of appellant's agents or servants in cutting and trimming certain trees growing on the sidewalk in front of appellees' lots, which in one case had been planted by appellee some years ago, and in the other case it does not appear by whom they were planted. Appellant, a corporation invested with the right of eminent domain under the laws of this state, and authorized by law to erect poles and stretch wires thereon through the streets of Birmingham was required by an ordinance of that city to remove certain of its poles and wires from the street on which appellees' property is situated, and to place them on the sidewalk in front of such property. Appellant claims that, in order to comply with this ordinance, it became necessary to cut and remove many of the limbs of the trees which had entwined themselves about the wires, and also to cut other limbs, in order that the trees should not interfere with the wires after the poles were removed to the sidewalk and the wires suspended over the tops of the trees; that, on ascertaining this to be necessary, it so informed the mayor of the city, who promised to obtain the consent of the property owners; that afterwards, and without having obtained such consent, as appellees were informed at the time, the mayor sent an officer of the city fire department to superintend the trimming of the trees, and under his direction the work was done by appellant's employés. Besides the appellant's wires on the poles, there was also a fire-alarm telegraph wire, which was the property of the city, and used in connection with the fire department. It was also removed with the poles and appellant's wires. Its position on the poles was underneath appellant's wires, and the testimony tends to show it was this wire mainly that necessitated the cutting of the trees. The cases were tried before a judge of the city court, without a jury, and judgments were rendered in both cases for appellees, who were plaintiffs in the court below. The measure of damages adopted by the city court was the difference between the market value of the lots abutting on the street before the trees were mutilated by the alleged reckless cutting and their value after such cutting. The appeal is taken pursuant to the statute creating said court, and brings the whole case before us for review.

The two controlling questions are: First. Whether an action of trespass lies in favor of appellees, as owners of the lots abutting on the street where the trees are standing, against appellant, for the acts of its employés in cutting the trees. Second. If such liability was incurred, what is the measure of damages?

Appellant's counsel have filed an interesting and elaborate argument in support of the proposition that a telephone service does not constitute an additional burden on the public streets of a city, and they cite numerous cases which are ably reasoned; but, in our opinion, the decision of the cases presented by these appeals for our consideration does not turn on that question, and we therefore leave it undecided. Other principles to which we will presently advert must govern our conclusions.

The owner of property abutting on a public street in a city, in the absence of statutory provisions to the contrary at the time of the dedication, or of a different intention appearing from the instrument or act of dedication, owns the fee in the land to the center of such street subject to the public easement. Western Ry. Co. v. Alabama Grand Trunk Ry. Co., 11 So. 483, 96 Ala. 272; Evans v. Railway Co., 90 Ala. 54, 7 So. 758; Moore v. Johnston, 87 Ala. 220, 6 So. 50; Railway Co. v. Witherow, 82 Ala. 190, 3 So. 23; Perry v. Railway Co., 55 Ala. 413; 5 Am. & Eng. Enc. Law, 405. And, in the absence of proof to the contrary, the presumption of law is that the fee to the center of the street is in the owner of the abutting property. Rice v. County of Worcester, 11 Gray, 283; Railway Co. v. Rodel, 46 Am. Rep. 164; Weller v. McCormick (N. J. Sup.) 1 Atl. 516; City of Boston v. Richardson, 13 Allen, 146. When such ownership is of the ultimate fee in land constituting a public country road, it has generally been recognized as retaining with it, subject to the easement of passage and its incidents, and for purposes of repairs, the right to the earth, timber, and grass growing between the center line of the road and the boundary of the owners' lands along the road, as well as all minerals, quarries, and springs below the surface; and such owner may maintain actions against those who interfere with these rights. But, in respect of streets in populous places, it has been said, and we think with obvious reason, that the public convenience requires more than the mere right to pass over and upon them, and that the uses to which they may legitimately be put are greater and more numerous than those which may be applied to ordinary roads or highways in the country. Mr. Dillon, in his work on Municipal Corporations, in speaking of municipal control over public streets, uses the following language: "Whether the municipal corporation holds the fee of the street or not, the true doctrine is that the municipal authorities may, under the usual powers given them, do all acts appropriate or incidental to the beneficial use of the street by the public, of which, when not done in an improper and negligent manner, the adjoining freeholder cannot complain." In this state, however, that doctrine must be accepted as limited and controlled by the constitutional provision requiring municipal and other corporations invested with the right of eminent domain to make just compensation for property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements. Const. Ala. art. 14, § 7; City Council of Montgomery v. Townsend, 80 Ala. 489, 2 So. 155; Id., 84 Ala. 478, 4 So. 780; City Council v. Maddox, 89 Ala. 181, 7 So. 433. Although it should be conceded that the posts and wires comprising a telegraph and telephone service are an additional burden on the street, for which compensation must be made to the owner of the abutting property, the city, if it have legislative authority for that purpose, may grant the right to such a company to use the public streets for its business in common with, and without obstructing, the use of such street by the public. Concurrent legislative and municipal authority granted to such a company to erect its poles and suspend its wires in and over the streets of a city will protect it from being treated as a trespasser, and its works from being declared a nuisance, if its works are so constructed as not to obstruct or interfere with the use of the streets by the public or the property owners' right of ingress and egress to and from his abutting property. Perry v. Railroad Co., 55 Ala. 413. If the company, under such circumstances, is not a trespasser in its occupancy of the street, it is competent for the city to exercise whatever legislative authority it may possess in the matter of regulation and control over the streets, in order to render effective the right conferred on the company to plant its poles and suspend its wires in and over the public highway; and it therefore becomes necessary to consider the nature of the property owners' claim to the trees, and the extent of the city's authority in respect thereto, in the exercise of the powers and duties imposed on it to maintain safe and convenient highways throughout the entire width thereof. City Council v. Wright, 72 Ala. 411.

Appellees' ownership of the trees, whether the latter were planted by them on the sidewalk, or acquired by devolution of title to the adjacent property, was and is a qualified and limited ownership, subordinate to the public right to safe and convenient passage, and to the rights, powers, and duties of the governing municipal body in the protection, promotion and establishing of every public use in and upon the streets in a city. Baker v. Town of Normal, 81 Ill. 108. In respect of all such matters, the private right of the owner of the abutting property to maintain the trees must yield to the paramount public right whenever the necessity may arise, although, until such necessity does arise, the owner is clearly entitled to the enjoyment of all the benefits which may result to his property from such trees, and to protection from their destruction or mutilation by others. For instance, if the roots of the trees should cause irregularities or breaks in the pavement upon the sidewalk or street, or if the shade and moisture from the trees should rot or injure a wooden pavement, or if the trees otherwise interfered with vehicles or foot passengers, it would, in our opinion, be clearly within the power and duty of the city to remove such trees, and without liability to the owner. In principle, we can perceive no substantial difference between the exercise...