Zimmerer v. Stuart

• Decision Date: 28 February 1911
• Docket Number: 16,220
• Citation: 130 N.W. 300,88 Neb. 530
• Parties: FERDINAND ZIMMERER ET AL., APPELLANTS, v. HARLEY L. STUART ET AL., APPELLEES
• Court: Nebraska Supreme Court

130 N.W. 300

88 Neb. 530

FERDINAND ZIMMERER ET AL., APPELLANTS, v. HARLEY L. STUART ET AL., APPELLEES

No. 16,220

Supreme Court of Nebraska

February 28, 1911

APPEAL from the district court for Dawson county: BRUNO O HOSTETLER, JUDGE. Affirmed.

AFFIRMED.

Rich O'Neill & Gilbert and J. H. Linderman, for appellants.

E. A Cook, E. M. Morsman, Jr., and Warrington & Stewart, contra.

OPINION

REESE, C. J.

On the 9th day of December, 1897, the mayor and council of the city of Lexington passed an ordinance, of which the following is a copy:

"ORDINANCE No. 137.

"An ordinance granting the use of the streets of the city of Lexington to George Zimmerer for the purpose of erecting poles and placing wires thereon for telephone purposes, and authorizing him to erect and maintain a telephone system in said city and regulating the same, and providing a penalty for injuring or destroying the same.

"Be it enacted by the mayor and council of the city of Lexington, Nebraska:

"Section 1. That George Zimmerer is hereby authorized to erect and maintain a telephone system in the city of Lexington, and is hereby granted the privilege to erect poles in the streets of said city and string wires thereon for telephone purposes; provided that none of said poles shall be erected more than one foot from the sidewalk, and shall be placed in the ground at least five feet, and shall be made substantial, and no wire shall be strung less than 18 feet from the ground; provided also that said poles shall not be placed so as to interfere with the electric light poles and wires, nor with the water mains and hydrants of said city.

"Section 2. That said George Zimmerer shall erect and maintain a suitable central office, with proper switchboards and apparatus for a complete telephone system in said city for a period of two years.

"Section 3. That the charges for the use of the telephones in said system shall not exceed the sum of $ 2 per month for stores, offices and other public places, and $ 1.50 for residences, and shall not exceed the sum of $ 1.00 per month where the patron owns his own telephone.

"Section 4. That it shall be unlawful for any person to cut down, dig up, or destroy any poles, or to cut, break, or destroy any wires, or injure any instrument belonging to and used in said system. That any person who violates the provisions of this section shall, on conviction thereof, be fined in any sum not exceeding $ 100 and shall be committed to jail until such fine and costs are paid.

"Section 5. That if at any time it becomes necessary for the city to have any of the poles or wires in said system removed, or in case said poles or wires interfere with the removal of any building in said city, the said George Zimmerer shall at once upon notice remove said poles or wires until the necessity for their removal no longer exists.

"Section 6. That all ordinances or parts of ordinances in conflict herewith are hereby repealed."

About the same time the said Zimmerer entered into contracts with proposed patrons of his system by which he agreed to furnish, and they agreed to take, telephones for the term of two years. Acting under the provisions of the ordinance, Zimmerer installed a limited number of telephones, placing a small switchboard in a rented room, and setting the poles in the streets. The development of the system was evidently retarded for lack of funds, Zimmerer and his wife having charge of the operation of the system, no others, apparently, being interested. On the 25th day of August, 1899, Zimmerer borrowed the sum of $ 1,750 from the first National Bank of Lexington, and to secure the payment of his note given for the payment of the same executed and delivered to the bank a chattel mortgage on the whole system, setting forth in detail the telephones, lines, poles, switchboards, etc., closing with the recital that it was "understood that this mortgage covers all and every kind of property connected with the telephone system of said mortgagor." On the 13th day of March, 1900, the mayor and council of the city of Lexington duly enacted and passed another ordinance, of which the following is a copy:

"ORDINANCE No. .

"An ordinance granting the exclusive use of the streets and alleys of the city of Lexington, Nebraska, to George Zimmerer, his successors or assigns, for the period of ten years for the purpose of erecting poles and placing wires thereon for local telephone purposes, and authorizing the erection and maintenance of a telephone system and fixing the rate of charges in said city, regulating the same, and providing a penalty for injuring and destroying the same, and providing conditions for the termination of said franchise.

"Be it ordained by the mayor and council of the city of Lexington, Nebraska:

"Section 1. That George Zimmerer, his successors or assigns, is hereby granted the exclusive right and privilege for a period of ten years from the date of the passage, approval and publication of this ordinance, to establish and maintain a local telephone system in the city of Lexington, Nebraska, and for the purpose the said George Zimmerer, his successors or assigns, is hereby granted the exclusive right and privilege to erect and maintain poles and wires and the appurtenances thereto necessary, through, upon and over the streets, alleys and public grounds of said city of Lexington; provided that said George Zimmerer shall at all times, when requested by the proper authorities of said city, permit the poles and fixtures to be used for the purpose of placing and maintaining thereon, free of charge, any wires which may be necessary for the use of the police or fire departments of the city of Lexington, Nebraska; and further provided that none of said poles shall be removed more than one foot from the sidewalk and shall be placed in the ground at least five feet and shall be made substantial, and no wire shall be strung less than 20 feet from the ground; and provided further that said poles shall not be placed upon and interfere with the electric (light) poles and wires, nor with the water mains and hydrants in said city.

"Section 2. That said George Zimmerer, his successors and assigns, shall erect and maintain a suitable central office, with proper switchboards and apparatus for a public telephone system in the said city during the term of the grant or franchise, and said city shall also during said term be furnished and kept in repair two telephones free of charge during the time aforesaid.

"Section 3. That the charges for the use of the telephones in said system shall not exceed the sum of $ 2 per month for stores, offices and other public places, and $ 1.50 for residences per month.

"Section 4. That it shall be unlawful for any person to cut down, dig up or destroy any poles, or to cut, break or destroy any wire, or injure any instrument belonging to and used in said system. That any person violating the provisions of this section shall, on conviction thereof, be fined in any sum not exceeding $ 100 and shall be committed to jail until the fines and costs are paid.

"Section 5. That the rights and franchise herein granted are upon the express condition that the said George Zimmerer, his heirs, executors, administrators and assigns, shall at all times within the period of this franchise maintain a complete and working telephone system in said city and provide telephone connections for the inhabitants of said city at the rates herein stated, and in case of any failure of said George Zimmerer, his heirs, executors, administrators or assigns, to comply with said conditions, the mayor and council of said city of Lexington may, by resolution passed, after 30 days' notice to the said George Zimmerer, his heirs, executors, administrators and assigns, or resident agent, declare the franchise hereby granted forfeited, and all rights of said George Zimmerer, his heirs, executors, administrators and assigns, shall thereby be determined and terminated.

"Section 6. That if at any time it becomes necessary for the said city to have some (any) of the poles or wires in said system removed, or in case the said poles or wires interfere with the removal of any buildings in said city, the said George Zimmerer shall, within 48 hours after notice in writing by the proper officers of said city, remove such poles or wires until the necessity for their removal shall no longer exist.

"Section 7. That all rights secured by or accruing to said George Zimmerer under and by virtue of ordinance No. 137 of said city of Lexington, Nebraska, are hereby reserved and confirmed in the said George Zimmerer.

"Section 8. That all ordinances or parts of ordinances in conflict herewith are hereby repealed."

This ordinance was passed at the request of Zimmerer, and he accepted and agreed to all its provisions. He and his wife continued to extend and operate the telephone system until the 6th day of September, 1900, when he died, leaving no issue. Upon his death, his widow took personal charge of the system, paid the debt secured by the chattel mortgage, and extended the lines and increased the efficiency of the telephone plant, and so continued until th 11th day of June 1903, when she intermarried with Harley L. Stuart, defendant in this action. After their marriage defendant and his wife continued to extend and develop the system, each contributing their time, labor and money, until the 24th day of December, 1907, when she died testate, leaving surviving her her husband and an infant daughter. Her will was executed ...