W. Union Tel. Co. v. Bullard

• Decision Date: 16 February 1895
• Citation: 67 Vt. 272,31 A. 286
• Court: Vermont Supreme Court
• Parties: WESTERN UNION TEL. CO. v. BULLARD.

31 A. 286

67 Vt. 272

WESTERN UNION TEL. CO.

v. BULLARD.

Supreme Court of Vermont. Caledonia.

Feb. 16, 1895.

Appeal in chancery, Caledonia county; Tyler, Chancellor.

Bill by the Western Union Telegraph Company against O. B. Bullard to enjoin defendant from interfering with the construction of a telegraph line opposite defendant's premises. A decree was rendered for orator, and defendant appeals. Affirmed.

The orator prayed that the defendant be perpetually enjoined from interfering with its telegraph line opposite his premises, and for general relief. The bill alleged that the defendant had partially destroyed, and proposed to entirely destroy, the orator's line, unless restrained, and the master found that the damages occasioned by what the defendant had done before the granting of the temporary injunction were $40. The facts fully appear in the opinion.

Harry Blodgett, W. P. Stafford, and Bates & May, for orator.

Dunnett & Nelson, for defendant.

TYLER, J. The report of the special master has practically settled the matters in controversy in this suit. Acts 1888, No. 32, which is an amendment of section 3633, R. L., gives telegraph and telephone companies the right to construct and maintain their lines upon any highways in this state, though not to interfere with the public use of such highways. It being found desirable to erect this line along the street of a village, and in front of and near the defendant's residence, substantially where the old line stood, it was his right, under section 3635, R. L., to apply to the village trustees, who were empowered to determine through what streets, and in what manner, the line should pass. Though the defendant did not apply to these officers, "the location and the manner of replacing and repairing the line was adopted upon conference between the orator and the trustees, * * * and the trustees approved of the work as it progressed." The defendant's premises constituted a fine residential property fronting on this street, and he desired to cultivate his grounds, which commanded an extended and picturesque view, and make the place a model of beauty. His counsel contend that, as it was found that the line caused some damage to the property, the orator should have proceeded under section 3637, R. L., which provides that the selectmen shall in such cases appraise the damage before the line is erected. This should have been done, if the defendant objected to the erection of the line. Upon this subject the master finds "that the poles and wires do interfere somewhat with the defendant's shade trees, but that results from the fact that the trees overlap a public street"; that the poles "do somewhat mar the beauty"; that "the outlook is interrupted"; and that there was some trimming of the branches of the trees that overhung the street. He also finds that the manner of construction of the line was reasonable and proper, and that the trimming was of the smaller twigs, and was carefully and properly done. It was held In Rugg v. Telegraph Co., 66 Vt. 208, 28 Atl. 1036, that this section was to be construed, in the light of the preceding sections, to mean that the selectmen were not to assess damages in the cases named in the section, except when objections were made.

The findings are that the old posts had become dilapidated, unsightly, and unsafe; that the trustees had made complaint thereof to the company, which undertook to replace the old line with a new one on the southern side of Eastern avenue; and that the location was agreed upon. Before anything was done the trustees Informed the defendant of the proposed plan, with its material details, to which he gave his consent. The agent of the company, relying thereon, proceeded to prosecute the work; erected poles on the avenue as far as the defendant's estate, and one pole opposite thereto. Other poles were left upon the ground, and holes were dug for them, when the defendant objected to those selected to stand on each side of his driveway, and was allowed to select others, which he did, and said they were satisfactory to him. The orator's agents then set these two poles in the line, and the next morning the defendant directed his man to cut down one of them, warned the agents not to proceed further, threatened violence if they should do so, and gave notice that he should remove the poles as fast as they were erected. Later in the same day, upon a conference with the trustees, he withdrew his objection, and said that he would not object further, whereupon the line of poles opposite his premises was completed, and the cross arms were nailed on and prepared for the wires. This was on Saturday. Sunday night he proposed to one of the trustees to run the line in the rear of his buildings, and notified the trustee, in behalf of himself and daughters, "that he would not have any lines or telegraph poles and wires in front of his premises." This was communicated to the company's agents who had the work in charge. Early Monday morning the company's agents strung two wires upon the arms, and later in the day, by the defendant's directions, one arm was sawed off and one pole was cut down, which acts were the cause of procuring the injunction. So it appears that nothing was done about erecting the line in front of the defendant's premises without his consent, except stringing the wires Monday morning. It is found that the orator was a corporation which, for many years prior to 1880, and ever since, has operated a telegraph line along the Passumpsic Division of the Boston & Maine...