Suburban Elec. Light & Power Co. v. Inhabitants of E. Orange Tp.

• Decision Date: 09 December 1898
• Citation: 41 A. 865
• Parties: SUBURBAN ELECTRIC LIGHT & POWER CO. v. INHABITANTS OF EAST ORANGE TP.
• Court: New Jersey Court of Chancery

41 A. 865

SUBURBAN ELECTRIC LIGHT & POWER CO.

v. INHABITANTS OF EAST ORANGE TP.

Court of Chancery of New Jersey.

Dec. 9, 1898.

Bill by the Suburban Electric Light & Power Company against the inhabitants of East Orange township in the county of Essex. Heard on bill and affidavits and answer and affidavits on an order to show cause why an injunction should not issue. Injunction issued.

C. W. Riker, for complainant.

P. Woodruff, for defendant.

PITNEY, V. C. The complainant is a corporation organized under the general corporation act for the purpose of supplying electric light and power, and in the exercise of its corporate rights has strung certain electric wires along a street known as Central avenue, within the territorial limits of the defendant, the township of East Orange. The municipal authorities of that town threaten to remove said wires by force, and the object of the bill is to restrain such threatened action. The wires in question are strung upon poles belonging to, and by the permission of, a telephone company, which poles were erected and are maintained lawfully, and the right of the company so erecting them to maintain the same, so far as the municipality is concerned, is not challenged. It was admitted that the wires are maintained at such a height as not in any wise to interfere with the use of the streets. The right of the complainant to so maintain the wires is based upon the act of May 10, 1884 (P. L. p. 331), which was in substance re-enacted by the act of April 21, 1896 (P. L. p. 322). That act provides that a company like the complainant "shall have full power to use the public roads or highways, streets, avenues and alleys in this state for the purpose of erecting posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil," with a provision that "no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the street in which the same shall be placed, and the manner of placing the same, and that the same shall be so located as in no way to interfere with the safety or convenience of persons traveling on or over the said roads and highways, and that the public streets in any of the incorporated cities and towns of this state shall be subject to such regulations as may be first imposed by the corporate authorities of such cities and towns." The township committee of East Orange, by a special charter, are authorized by subdivision 9 of section 6 of the supplement to the act organizing the township, which supplement was passed March 10, 1873, "to prevent or regulate the erection or maintenance of any awning, stoop, steps, platform, bay window, swinging gate, cellar door, area, descent into a cellar or basement, sign, banner, post or erection or projection of any kind in, over or upon any street or highway or public place, and to remove the same when already erected, at the expense of the owner or occupant of the premises in front of which the same may be." P. L p. 324. By authority of that section alone, on the 11th of October, 1886, the township committee passed an ordinance regulating the mode in which telegraph, telephone, or electric light poles should be erected in the city; and the fourth section of that ordinance provides that "all telegraph, telephone or electric light wires shall be placed so as to hang not less than twenty feet above the street crossing over which they are drawn." That is the only provision in that ordinance as to the stringing of wires. On the 19th of February, 1889, the township committee passed an ordinance which provides "that no person or persons shall run or suspend across or through any public street in this township any electric wire, except at railroad crossings, without first obtaining the permission of the township committee." Subsequently, on the 14th of October, 1895, the township committee adopted the following resolution: "Resolved, that consent be, and the same is hereby, given to the Suburban Electric Light and Power Company [the complainant] to erect poles and string wires within this township for electric lighting purposes, subject to all the provisions and restrictions contained in the ordinance of the township, and especially of a certain ordinance entitled 'An ordinance regulating the erection of telegraph, telephone and electric light poles in the township of East Orange,' adopted October 11, 1886: provided, however, that no poles shall be erected within the lines of any accepted street within the township without the further consent of the township committee." It is alleged by complainant, and admitted by the...