Weeks v. Carolina Telephone & Telegraph Co.
| Decision Date | 24 March 1915 |
| Docket Number | 216. |
| Citation | 84 S.E. 812 |
| Parties | 168 N.C. 468, Am.Ann.Cas. 1917C,75 v. CAROLINA TELEPHONE & TELEGRAPH CO. WEEKS |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Lenoir County; Rountree, Judge.
Action by Orrin Weeks against the Carolina Telephone & Telegraph Company. From a judgment of nonsuit, plaintiff appeals. Reversed.
In action for damages on refusal of a telephone company to remove wires, so as to permit the moving of a house along a street pursuant to a permit granted by the city, held improper to grant a nonsuit.
G. V Cowper, Loftin & Dawson, and Rouse & Land, all of Kinston for appellant.
Y. T Ormond, of Kinston, and G. M. T. Fountain & Son, of Tarboro, for appellee.
This is an action by a resident and taxpayer of Kinston, who had obtained a permit from the city authorities to move a house along the street from one point to another in that town. The city had passed an ordinance regulating the moving of houses which required a permit from the city, and that the mover should bear all expenses of removing the electric light wires for the passage of such house, with a penalty for allowing any building to remain in the same place more than six hours in the day, Sundays excepted.
The city had granted the defendant a franchise to erect the telephone system by an ordinance, under one section of which the defendant obligated itself to observe the ordinances of the city, then in force or thereafter to be enacted, which was its duty any way. The poles were erected under the supervision of the board of aldermen. After the completion of the defendant's system, it appeared before the city council and asked to be permitted to raise the rates of phone rentals, as provided in the franchise, which the board permitted and fixed the rates. It was admitted that at the time of the franchise, and since, it has been usual to move buildings under the permit of the city.
The plaintiff testified that he was negotiating the purchase of a one-story building, and offered to pay $375 for the building, provided the city would grant the permit to move, and that the telephone company would remove its wires to permit the building to be carried from its then location to a vacant lot on which the plaintiff wished to place it. He said that he received from the authorities permit to remove the building, and then applied to the defendant's manager, who told him to go ahead, and he would remove the wires when necessary, and that in consequence he purchased the house.
Under these conditions, the plaintiff testified he began to remove the building. The small wires were actually cut, and the house was moved into the street and reached the first crossing, where the defendant's wires, poles, and cables interfered. At this point the defendant's manager refused to remove the obstructions unless the plaintiff would pay all expenses, which the defendant's manager estimated at a large sum. The defendant offered evidence tending to show that cables would have to be cut at a great expense, while the plaintiff offered evidence tending to show that the building could have proceeded by merely lowering or raising the cable. After expending $500, the plaintiff was compelled to sell the building at the highest market price, $100, and claims that he sustained a loss of $400, not including the loss of all benefit and profit from the proposed transaction.
The court erred in granting a nonsuit. The town of Kinston was vested with full authority to regulate the use of its streets, and by ordinance had assumed to control the moving of buildings along said street, and had granted this plaintiff a permit to thus move the building. Besides, there was evidence tending to show that the defendant, through its local manager, who was in control of its plant and operations in that town, contracted with the plaintiff to remove the obstructions in the way of his removal of this building.
The full authority of a municipality over its streets and the wide discretion reposed in them is fully recognized in Tate v. Greensboro, 114 N.C. 392, 19 S.E. 767, 24 L R. A. 671, and in the cases...
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