White v. Detroit Edison Co., Docket Nos. 30308
| Decision Date | 22 December 1977 |
| Docket Number | 77-2136,Docket Nos. 30308 |
| Citation | 80 Mich.App. 346,263 N.W.2d 367 |
| Parties | Elmer E. WHITE, Plaintiff-Appellant, v. DETROIT EDISON COMPANY, a New York Corp. doing business in Michigan and Michigan CATV Associates, a Michigan limited partnership, Defendants-Appellees. Elmer E. WHITE, Plaintiff-Appellee, v. CITY OF ANN ARBOR, a Michigan Municipal Corporation, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
White & Carter, by Elmer E. White, Ann Arbor, for Elmer White.
R. Bruce Laidlaw, Asst. City Atty., Ann Arbor, for City of Ann Arbor.
James J. Daskaloff, Detroit, for Detroit Edison.
Forsythe, Campbell, Vandenberg, Clevenger & Bishop, P. C., by David T. Bell, Ann Arbor, for Mich. CATV.
Before QUINN, P. J., and V. J. BRENNAN and BOSMAN, * JJ.
On motion of plaintiff, these two appeals were consolidated for submission and decision. In No. 30308, plaintiff appeals a summary judgment entered in favor of defendants. In No. 77-2136, defendant appeals a summary judgment entered in favor of plaintiff.
Plaintiff owns a residential lot located in Ann Arbor, the rear six feet of which are reserved by easement for public utility access. Defendant Detroit Edison, hereinafter Edison, maintains poles and transmission lines across that easement. Michigan CATV Associates, hereinafter CATV, held a franchise from Ann Arbor to operate a community antenna television system within the city. In exercising the franchise, CATV contracted with Edison to string cable TV wires on Edison poles. The installation of such wires across the easement on plaintiff's property generated this litigation. Section 2.105 of CATV's franchise provides:
"The poles used by Grantee's transmission and distribution system, wires and appurtenances shall be located, erected and maintained on existing utility facilities where possible, and Grantee shall go underground when utilities do but not necessarily in the utility facilities."
By his action in No. 30308, plaintiff sought damages for trespass by CATV and for an accounting from Edison for all monies paid to it by CATV since January 1, 1974, for use of Edison poles by CATV. The latter relief was sought on a theory of unjust enrichment.
CATV alleged that it was a public utility within the meaning of the Plat Act, being M.C.L.A. § 560.1 et seq.; M.S.A. § 26.431 et seq., now the Subdivision Control Act of 1967, being M.C.L.A. § 560.101 et seq.; M.S.A. § 26.430(101) et seq. In granting summary judgment in favor of defendants, the trial court held that CATV was a public utility within the meaning of M.C.L.A. § 560.102(l ); M.S.A. § 26.430(102)(l ) and that as such it was entitled to use Edison poles under contract with Edison. Thus no trespass occurred and there was no foundation for plaintiff's claim for an accounting from Edison.
M.C.L.A. § 560.102(l ); M.S.A. § 26.430(102)(l ) provides:
" 'Public utility' means all persons, firms, corporations, copartnerships or municipal or other public authority providing gas, electricity, water, steam, telephone, sewer, or other services of a similar nature."
We hold that CATV comes within "other services of a similar nature " and is a public utility within the Subdivision Control Act. Therefore, we affirm the trial court.
In No. 77-2136, plaintiff filed a complaint for a declaratory judgment declaring defendant's community antenna system ordinance unconstitutional, or, in the alternative, declaring certain sections thereof unconstitutional, or, alternatively, that the court order defendant to hold an election so the electors of defendant could express themselves on the ordinance. The theory on which this action was based was that community antenna television systems are public utilities within Const.1963, art. 7, § 25.
Defendant's answer denied that community antenna television systems are public utilities; alleged that no justiciable case or controversy existed and that plaintiff lacked standing to bring the action.
In granting summary judgment in favor of plaintiff, the trial court held that community antenna television systems are public utilities within the constitutional provision specified above, that a justiciable case existed and that plaintiff had standing.
The antecedent provision of Const.1963, art. 7, § 25, was Const.1908, art. 8, § 25, which read in pertinent part:
"Nor shall any city or village acquire any public utility or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless such proposition shall have first received the affirmative vote of 3/5 of the electors of such city or village voting thereon at a regular or special municipal election; * * *."
In Holland v. Clerk of Garden City, 299 Mich. 465, 300 N.W. 777 (1941), the Supreme Court held that the last quoted constitutional provision applied only to public utilities for supplying water, light, heat, power and transportation. The Holland case involved acquiring by construction certain water and sewer mains.
Const.1963, art. 7, § 25, reads:
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