Southwestern Telegraph & Telephone Co. v. Smithdeal

• Decision Date: 03 May 1911
• Citation: 136 S.W. 1049
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SMITHDEAL.
• Court: Texas Supreme Court

136 S.W. 1049

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SMITHDEAL.

Supreme Court of Texas.

May 3, 1911.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by C. M. Smithdeal against the Southwestern Telegraph & Telephone Company. There was a judgment of the Court of Civil Appeals (126 S. W. 942) affirming a judgment for plaintiff, and defendant brings error. Affirmed in part and reversed in part.

See, also, 124 S. W. 627.

A. P. Wozencraft, W. S. Bramlett, and W. E. Spell, for plaintiff in error. Morrow & Smithdeal, for defendant in error.

DIBRELL, J.

This is an action by C. M. Smithdeal, plaintiff below, against the South-western Telegraph & Telephone Company, defendant below, begun in the district court of Hill county, for the dual purpose of recovering damages done his property, situated in the city of Hillsboro, by reason of the construction by said company of its telegraph and telephone lines in and along the sidewalks and streets of the city of Hillsboro adjacent to his property occupied by him as a homestead, and to secure a mandatory injunction requiring the defendant to remove certain of its wires and cables. The claim for damages and mandatory injunction was based on the allegations: That plaintiff owned and occupied a certain lot situated at the intersection of Franklin and Ivy streets in the city of Hillsboro, fronting 90 feet on one street and 160 feet on the other, having upon it a dwelling house and the usual outhouses. That between the lot and the street there is a sidewalk on one side of his property in which are growing large and valuable shade trees belonging to plaintiff, and which render more valuable his property by adding thereto comfort and beauty. That defendant has erected poles along and on the sidewalk fronting Franklin and Ivy streets, and has placed cross-arms on the poles and strung thereto wires and cables; that it "has erected and placed a large, tall, rough, and unsightly pole" at the northeast corner of plaintiff's property in the sidewalk, and one of like character on the east side, and attached thereto long, ugly, and unsightly cross-arms and spikes and strung thereon wires, cables, and guy wires. That all of such structures obstruct plaintiff's view and produce an ugly sight which has greatly depreciated the value of his property, making it less desirable. That the wires and cables are so strung and attached to said poles as to rest in and among the limbs and boughs of said trees and have injured such trees by bruising and breaking the limbs, and if suffered to remain in such position will eventually kill and destroy his trees entirely, to his irreparable injury and damage in the sum of $500. The claim for accrued damages to the trees was laid at $500, and to the property generally at $700. The defendant answered to the merits by general denial and a number of special pleas, among which were the following: That it had a permit from the state of Texas to do business in the state; that in conformity with such permit and the grant of a franchise from the city of Hillsboro it constructed its lines in and along the streets and sidewalks in said city and is operating a local and long-distance exchange in the city of Hillsboro for telegraphic and telephone purposes; that its business is conducted as a public service; that its lines, consisting of poles, wires, cables, and guy wires, are so constructed as not to interfere with the use of said streets and sidewalks and in compliance with the city ordinance controlling such structures; that said lines are properly constructed and maintained; and that said lines were constructed long before plaintiff owned his said property and before his said trees were planted. The cause was tried by a jury, who assessed the damage at $200 and found, in response to a request by the court, that it was not necessary for defendant's cables to remain in the boughs of plaintiff's trees. Based upon the verdict of the jury, the court entered judgment against the defendant for the sum of $200, with interest thereon at 6 per cent. per annum from date of judgment, and awarded plaintiff a mandatory injunction in the following language: "* * * It is therefore ordered, adjudged, and decreed by the court that the plaintiff have a mandatory injunction requiring the said defendant to remove the said cables from the branches of the plaintiff's trees, and that said injunction be perpetual and forever enjoin the defendant from placing its cables in the plaintiff's trees or in the branches of plaintiff's trees, and that the defendant be at once required to remove said cables so that the same will not come in contact with the plaintiff's said shade trees." From the foregoing judgment the defendant appealed to the Court of Civil Appeals for the Fifth Supreme Judicial District, and said judgment was affirmed by said court (Southwestern Telegraph & Telephone Co. v. C. M. Smithdeal, 126 S. W. 942) and is in this court on writ of error.

The material facts adduced on the trial of this cause as found by the Court of Civil Appeals were substantially as follows: "Defendant's constructions consisted of poles set at intervals along the sidewalks in the streets, some of which were stayed by guy posts and wires, and on said poles were crossbeams upon which were strung wires and cables; the whole forming a complete structure. Part of this structure was placed on the sidewalks adjoining plaintiff's lot and other parts on the sidewalks opposite said lot. The evidence shows that plaintiff owned a lot in the city of Hillsboro, on which he had erected a residence which he occupied as a homestead, and on the sidewalks adjoining shade trees were growing. Defendant company had erected its lines along said sidewalk, having authority from the state and said city of Hillsboro so to do. Its wires and cables had come in contact with the branches of said trees, thereby injuring them, which depreciated the value of plaintiff's lot and impaired its use for the purpose of a home. The evidence shows that the cables were interfering with the growth of the trees, and that said cables could be placed higher on the poles there erected, where there would be no interference, and without any great expense or material inconvenience to defendant in the operation of its business."

At the request of defendant the Court of Civil Appeals made a further finding of facts as follows: "(1) That the main part of appellant's structure was built about the year 1895, and before the appellee acquired the lot on which stands his residence, and that only slight additions have been made thereto in the two years next preceding the bringing of plaintiff's suit. (2) That said structure * * * does not interfere with or incommode public travel more than is usual in structures of like character, erected for the transportation of messages in the telegraph and telephone business. (3) That the said structure was erected before appellee planted his trees and at a time when the growth of said trees had not developed."

We have undertaken to give a fuller statement of the pleadings and facts, perhaps, than the importance of the case justifies; but we deem it essential to do so to a clear understanding of the points of law decided.

Two salient questions are presented for consideration in disposing of this case: (1) Whether under the pleadings and proof the plaintiff was entitled to recover damages to his property occasioned by defendant placing its telephone poles and equipments on the sidewalks in front of his property abutting the street and in the boughs of his shade...