State v. Neb. Tel. Co.

• Decision Date: 05 April 1905
• Citation: 103 N.W. 120,127 Iowa 194
• Parties: STATE v. NEBRASKA TELEPHONE CO.
• Court: Iowa Supreme Court

127 Iowa 194

103 N.W. 120

STATE

v.NEBRASKA TELEPHONE CO.

Supreme Court of Iowa.

April 5, 1905.

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.

Action of quo warranto to oust the defendant from the streets and alleys of the city of Council Bluffs, and from the public highways of the county of Pottawattamie generally. The original petition alleged that the defendant had no franchise from the city, and was occupying its streets without right or authority of law. In an amendment to the petition it was alleged that “since October 1, 1897, the defendant had, without right or authority, built its lines in streets where prior to that date it had none, and that these lines obstructed the streets and were nuisances, and that the defendant has, without right or authority, constructed telephone lines” in the public highways generally in Pottawattamie county. The defendant pleaded the right to occupy the streets of the city and the rural roads under the general statute as it stood prior to the Code of 1897, and that the city of Council Bluffs had on the 8th day of October, 1888, by ordinance, granted to the defendant the right to occupy its streets for the purpose of carrying on a general telephone business in said city. A reply was filed, alleging that the grant by the city was void because of irregularities in the passage of the ordinance. There was a trial, and a judgment for the defendant. The state appeals. Affirmed.W. H. Killpack and Emmet Tinley, for the State.

S. B. Wadsworth and W. W. Morsman, for appellee.

SHERWIN, C. J.

Section 1324 of the Code of 1873, as amended by chapter 104, p. 100, of the Laws of the Nineteenth General Assembly, gave to any person or company the right to construct a telegraph or telephone line along the public highways of the state; and, under the authority so given, the defendant had the right to occupy the streets and alleys of the city as well as the rural highways or roads. Chamberlain v. Iowa Telephone Co., 119 Iowa, 619, 93 N. W. 596;State v. City of Red Lodge (Mont.) 76 Pac. 758. In the Code of 1897 the words “public roads” are used in the place of the words “public highways,” used in the former statutes; and, as we understand the appellant's argument, it is claimed that the change limits the defendant's right in the streets of the city to those actually occupied by it prior thereto. Whether the change was intended to distinguish between streets and rural ways, we need not determine, for, whatever the intent as to that, it is apparent that the change was not intended to, and does not, limit or affect the rights of those who accepted and acted upon the grant given by the former statutes. The grant to use the streets was without limitation as to territory, and under its authority there can be no question as to the right to extend the service to meet the demands of the public. The very nature of the business demands the use of many streets, and may demand the use of every street in the city, and this was doubtless contemplated by the Legislature when the unlimited grant was made. Chamberlain v. Telephone Co., supra; Duluth v. Duluth Telephone Co., 84 Minn. 486, 87 N. W. 1127. True it is that the acceptance of the grant may limit its operation, but, in the absence of an acceptance which does so, it must be presumed, from the nature of the business and the preparation made therefor, that the acceptance of the grant and the privileges thereunder was as broad as the grant itself, and included the right to...