Union Springs Telephone Co. v. Green

• Decision Date: 11 December 1969
• Docket Number: 4 Div. 368
• Citation: 229 So.2d 503,285 Ala. 114
• Parties: UNION SPRINGS TELEPHONE COMPANY, Inc., a Corporation v. Comer GREEN, d/b/a South Alabama Construction Company.
• Court: Alabama Supreme Court

Page 503

229 So.2d 503

285 Ala. 114

UNION SPRINGS TELEPHONE COMPANY, Inc., a Corporation v. Comer GREEN, d/b/a South Alabama Construction Company.

4 Div. 368.

Supreme Court of Alabama.

Dec. 11, 1969.

Theodore H. Hoffman, Union Springs, for appellant.

Lynn W. Jinks, Jr., Union Springs, for appellee.

MERRILL, Justice.

This is an appeal from an order of the trial court dissolving a temporary injunction after a hearing.

Appellant filed its bill of injunction on February 25, 1969, presented it to the court, and the temporary injunction was issued immediately, upon appellant making bond, and was served that same day.

Appellee filed a so-called motion to dissolve on March 24, 1969, and the hearing on the motion was set for April 2. At the conclusion of the hearing on that day, the trial court ordered the dissolution of the injunction.

The bill alleged that the appellant operates a public telephone system as a public utility both within the City of Union Springs and the territory surrounding the city in Bullock County; and that the appellant operates a telephone line or system by means of both underground telephone cable and overhead telephone wires and equipment mounted on utility poles.

The bill further alleged that the appellee was engaged in road construction work within easements owned by it and that appellee had dug into the ground severing and destroying appellant's underground cable system within the easements. It is further alleged that the appellee had removed and otherwise destroyed the appellant's guy wires supporting its utility poles with telephone lines mounted thereon. It is alleged that the actions of the appellee vitiated telephone service to the appellant's customers in the area surrounding the construction work and in Midway, Alabama, and that the appellant has a duty as a public utility to provide telephone service to such customers. It is also alleged that the appellee continued to work within the easements concerned.

It was stipulated by the parties to this appeal that the telephone company right-of-way easements are the property of the appellant and that such easements describe the premises which are the basis of the bill for injunction. It was further admitted by the appellee that the conduct complained of in the bill occurred on a project which was the subject of said injunction proceeding. There is no evidence to show that the easements concerned were condemned or that the appellant did not have a full property interest in said easements.

Appellee introduced into evidence, by stipulation, a contract between appellant and Bullock County, dated November 8, 1968, in which appellant agreed to relocate its lines and facilities located on the premises 'so as to occasion the least possible interference with the progress of the project.' On December 20, the county engineer wrote appellant that clearance on the project had been acquired and asked appellant to 'proceed immediately with the adjustment of your conflicting plant.' On February 17, 1969, appellee entered into a contract with the State Highway Department for certain construction work on the premises, which work was to be completed in 150 working days.

The work was on a culvert where there was a condemned bridge on the only access road from Highway 82 to the community of Peachburg.

Appellant argues that the bill for injunction 'states an equitable cause of action in that injury was done to appellant's property by the appellee'; that the evidence 'supports the averments of the bill' and under 'the procedure for hearing a motion to dissolve established by the case of Martin's Grill Meats, Inc. v. Retail, Wh. & Dept. St. U., 283 Ala. 584, 219 So.2d 634,' the motion to dissolve should have been denied, and the trial court erred in failing to deny the motion.

Appellant quotes in brief from a paragraph in the Martin opinion, but does not quote the last two sentences of the paragraph. We set out the entire paragraph:

'If the averments of the bill are not sufficient to give it equity, then the injunction ought to be dissolved. If, however, the bill does contain equity, then the court comes to the second question and must decide whether the proof sustains the averments which give equity to the bill. It appears from the instant decree that the court held the bill to be without equity and did not reach the second question. If the proof sustains the averments of the bill, then the motion to dissolve ought to be denied. If the proof does not sustain the averments, then the motion to dissolve ought to be granted. We do not here consider the discretionary power which the court has in deciding whether the injunction should be continued or dissolved. Cochran v. State ex rel. Gallion, 270 Ala. 440, 445, 119 So.2d 339, 91 A.L.R.2d 1340.'

In Martin, the only question was whether the bill contained equity, and this court held that it did. But we do not think Martin is apt authority here.

We think the confusion in this case results in the misnomer applied by the appellee to its document which was entitled 'Motion To Dissolve.' After moving the court 'to dissolve the injunction' the respondent submits: 'The allegations of the bill are untrue, and Respondent demands strict proof thereof.'

The new matter of the contract for the road construction is then averred, an agreement whereby appellant was to receive $2,398.49 from the county for its direct and indirect costs in relocating its facilities, that appellant had promised to remove its line but had not, that appellee was being held up from starting its work on the contract with the State Highway Department, that appellant had been notified to remove its lines and that appellant had not done equity. The document contained a prayer that the temporary injunction to dissolved, 'and for such other and further relief to which it in equity and good conscience may be...