The New Hope Telephone Company v. The City of Concordia

• Decision Date: 08 January 1910
• Docket Number: 16,257
• Citation: 106 P. 35,81 Kan. 514
• Parties: THE NEW HOPE TELEPHONE COMPANY, Appellant, v. THE CITY OF CONCORDIA et al., Appellees
• Court: Kansas Supreme Court

106 P. 35

81 Kan. 514

THE NEW HOPE TELEPHONE COMPANY, Appellant, v. THE CITY OF CONCORDIA et al., Appellees

No. 16,257

Supreme Court of Kansas

January 8, 1910

Decided January, 1910.

Appeal from Cloud district court; WILLIAM T. DILLON, judge.

Order reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TELEPHONE COMPANIES--Use of Streets and Highways--Regulation by Cities. Under existing statutes the right to build a telephone line in and over streets and highways is directly granted by the state, and the mayor and council of a city are powerless to prevent such use. The council has the authority to provide by ordinance reasonable rules regulating the use of the streets and alleys for that purpose by defining where and in what manner a telephone company shall erect and maintain its fixtures.

2. TELEPHONE COMPANIES--Request for Ordinance Prescribing Regulations--Rights of Company in Case of Refusal. It is the duty of a telephone company contemplating the exercise of the right granted by the state to ask the mayor and council to prescribe reasonable regulations of the exercise of the right before placing any of their poles and structures on the streets and other public grounds of the city; but if the mayor and council refuse to prescribe such regulations upon application the company may build its lines upon the streets and alleys in such a manner as shall not incommode the public in the use of the streets and alleys so occupied, and the city authorities are not at liberty to treat the structures so erected as a nuisance.

T. F Garver, and R. D. Garver, for the appellant.

Theodore Laing, city attorney, F. W. Sturges, and Fred W. Sturges jr., for the city of Concordia.

OPINION

JOHNSTON, C. J.:

This is a controversy between the New Hope Telephone Company and the city of Concordia, as to the right of the company to build a telephone line or lines into and through the city. The company had built and was operating telephone lines in. Cloud county outside of the city of Concordia, and on June 16, 1908, applied to the mayor and council of the city for the passage of an ordinance permitting it to build telephone lines into and through the city and to fix the conditions for the exercise of that right, but the application was arbitrarily refused and the company was denied the right to enter the city upon any condition whatever. On November 17 the company, without permission, built its line into the city, placing some of its poles on private property and some of them on public streets, and began to operate and do a telephone business within the city. On the night of November 19 the city and its officers cut down the poles which had been erected and otherwise obstructed the continuance of the business of the company, but the company reconstructed its lines, placing all of the poles on private property and stringing the wires forty feet high, so that they did not interfere with the use of the streets and alleys of the city for other purposes. The city and its officers were about to interfere with the reconstructed line when the company began this action and obtained from the probate judge an order restraining them from interfering with the line or the business of the company. On application the district judge set aside this order, and at the same hearing and without other testimony granted an order enjoining the telephone company from building or maintaining a line within the corporate limits of the city.

There is no dispute as to the facts, and no controversy except as to the rights of the respective parties under the statutes. The company insists that the statute itself has given the company the right to build into Concordia, which is a city of the second class, and that the city is without power to prevent the exercise of this right or to do more than to regulate the construction of the lines and the exercise of the right. The city contends that it may not only regulate but that it may exclude the company from building into the city on any conditions. There is a statute authorizing telegraph companies to use the public roads, streets and waters for the erection of their lines, but in such a manner as not to incommode the public. (Gen. Stat. 1901, § 1342.) The legislature of 1885 provided that telephone companies should have all the rights and powers and be subject to all the liabilities and duties of telegraph companies. (Laws 1885, ch. 104, §§ 1, 2; Gen. Stat 1901, §§ 1251, 1252.) It has been determined that this act is valid, and that it confers upon telephone companies the right to build into a city and to use the streets for that purpose. (Wichita v. Telephone Co., 70 Kan. 441, 78 P. 886.) Since that decision was made the following provision affecting telephone companies has been...