W. U. Tel. Co. v. Bullard
| Decision Date | 18 August 1893 |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. GATES B. BULLARD ET AL |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Debt for the penalty for interfering with the plaintiff's telegraph line given by R. L. s. 3,641. Heard at the June term, 1891, Ross, Ch. J., presiding, upon the defendant's demurrer to the declaration. The demurrer was sustained, and the plaintiff excepted. The opinion states the case.
Judgment reversed, demurrer overruled, declaration adjudged sufficient and cause remanded.
W P. Stafford and Harry Blodgett for the plaintiff.
Before TAFT, ROWELL, MUNSON AND START, JJ.
R. L. 3,641 provides that if a person wilfully or intentionally injures a telegraph wire, post or other fixture erected or maintained in pursuance of chapter one hundred and sixty-three, or wilfully interferes with the working of such telegraph line, or aids or assists in such offence, he shall forfeit one hundred dollars, to be recovered by an action of debt.
It is claimed that it does not appear from the declaration that the telegraph line claimed to have been injured was erected or maintained in pursuance of this chapter. If the line erected and maintained as shown by the declaration is such a line as the plaintiff was authorized to erect and maintain under this chapter, then it sufficiently appears that the line was erected and maintained in pursuance thereof.
Section 3,633 of this chapter provides that persons associated together to erect a line of telegraph in this State may set erect and maintain the posts and other necessary fixtures thereof in and along any highway, but the same shall be so done as not to interfere with the public convenience in travelling on such highway or repairing the same. By No. 32 of the acts of 1888, this section is amended by extending its provisions to telephone companies and telephone lines, and providing that trees shall not be cut or injured except under certain conditions. This act also provides that any person violating its provisions shall be fined not less than five nor more than fifty dollars for each and every tree so cut or injured, and that any corporation so offending shall forfeit a like amount for each offence.
It is alleged in the declaration that the plaintiff erected and maintained the telegraph line which it is claimed was injured by the defendants upon and over a certain highway in such a manner as in no way to interfere with the public convenience in travelling on and over said highway or in repairing the same. The telegraph line thus described is such a line as is provided for in section 3,633, as amended, and, from this allegation, it sufficiently appears that the line was erected and maintained in pursuance of this chapter.
While the act of 1888 provides that trees shall not be cut or injured except under certain provisions, and provides a penalty for violating these provisions, and other sections of chapter one hundred and sixty-three provide for the erection and maintenance of lines under different circumstances from those disclosed in the declaration and over different property, it was not necessary for the plaintiff to show by its declaration that it had not violated the provisions of the act of 1888 or subjected itself to the penalty therein provided, or that its line is not such a line as is provided for in other sections of this chapter. It is sufficient for the...
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