Postal Telegraph-Cable Co. v. Pacific Gas & Electric Co. ( 1927 )

I concur in the foregoing opinion in so far as it holds that the special demurrer to the second cause of action was properly sustained, but I dissent from that portion of the opinion which holds that the first count fails to state a cause of action. The first count in my opinion clearly alleges a continuing nuisance in that the defendant so installed and maintained its transmission lines that its high voltage currents were inducted on to and interfered with the operation of the plaintiff's telegraph lines, causing substantial damage thereto. It is alleged that the induction interferes with the use of machine transmission of telegraph messages and at times completely prevents the operation of said machines.

Included in the definition of a nuisance is the obstruction to the free use of property. (Sec. 3479, Civ. Code; 20 Cal. Jur. 261.) Section 731 of the Code of Civil Procedure specifically provides for an action for damages for the maintenance of a nuisance and the complaint shows that the alleged inductive interference is the direct and immediate result of the defendant's use of its property. The question of the superior right of a subsequent licensee in a public street or highway by reason of the paramount right of the public in the service performed by the subsequent licensee is not involved in this case. Here the two corporations, each exercising rights under a public grant of franchise for the purpose, are maintaining parallel lines on private rights of way in such manner that the defendant, the junior licensee, is so exercising the right as substantially to destroy the use to which plaintiff, a prior licensee, is reasonably putting its property. It is true that each is exercising what is called an extraordinary use, but I fail to comprehend the distinction endeavored to be made between the mutual rights and obligations of those putting their property to such extraordinary use. The rule announced by the main opinion is too broadly stated. It must be conceded that wanton or negligent damage is actionable without regard to priority. And it may be assumed that the prior licensee may not complain of unavoidable inconvenience as a result of the junior licensee's operations. But when the interference by the junior licensee is avoidable and substantial damage ensues, a right of action should lie. As I read the numerous authorities cited in the briefs, this proposition cannot be successfully controverted. Reason and justice demand that it must be so. It is inconceivable that a junior licensee, merely because it has the right from the public to exercise the franchise and maintain its high tension power lines, may so exercise that right as to exclude the prior licensee from the exercise of its lawful rights when such interference may reasonably be avoided. The prior licensee has the right to carry on its operations without substantial impairment. (Deiser on Law of Conflicting Uses of Electricity and Electrolysis, pp. 54-57, and cases cited.) That the damage claimed by the plaintiff herein is substantial is shown by the allegations of the complaint. That it is avoidable is evidenced by the order of the Railroad Commission in directing a separation of the lines sufficient to obviate the damage. (Postal Telegraph Cable Co. v. Railroad Com., 197 Cal. 426 [241 P. 81].) The exercise of the police power is not here involved and in no sense may the damage alleged be reduced todamnum absque injuria.

Waste, C.J., concurred.