Potter v. Saginaw Union Street Railway , 10 L.R.A. 176 ( 1890 )

Ohamplin, C. J.

This suit is brought to enjoin the construction of appliances for the use of electricity in operating a street railroad on the street in front of complain ant’s premises, and to enjoin the use of electricity for the operation of the road.

The bill avers that the complainant’s premises front a distance of 240 feet upon Farley street in the city of Saginaw, and 100 feet upon Washington street. The City of Saginaw Street Railroad extends along Washington street, and is operated by horses. The defendant’s street railroad has been built, and has been operated by horses, along Farley street, for about two years. Acting under an ordinance adopted by the common council of the city of Saginaw, it was engaged, at the time the suit was begun, in putting in place along the street a system of poles and wires constituting what is known as the “overhead system,” intending to make use of such appliances in operating its roads by means of electricity. The system consists of poles planted on opposite sides of the street, at intervals of about 125 feet along the street. To such poles, at about 16 feet from the ground, are fastened naked, uninsulated metallic wires, extending across the street from pole to pole, called “ cross ” or “supporting” wires. Such cross-wires are intended to support and maintain in place, suspended therefrom, an uninsulated, naked copper wire, running longitudinally along the street over the track of 'the railroad, known as a “traverse” or “trolley wire,” along which the current of electricity passes, and is conducted to the car by means •of a follower attached to the top of the car, and which presses against the traverse or trolley wire, receiving therefrom the current of electricity, and, by means of conducting wires, carrying the electricity to the device in the car which gives propulsion to the car. .The traverse wire has no shield, covering, or protection of any kind to prevent other things coming in contact with it, except a longitudinal wire placed at a short distance above it, nailed a “guard wire.” The traverse wire is insulated only by means of insulators placed upon the short wires, connecting the traverse wire with the cross-wires.

The complainant charges that the cars to be used are larger and heavier than ordinary horse-cars* and are-intended to be run at a higher rate of speed; that the force applied to propelling each car will be equal to 15-horse-power; and that the cars* by their size* speed* appearance, and manner of propulsion, are calculated to frighten horses. The entire force of electricity intended to be used for propelling the defendant’s many cars continually runs along such traverse wire. Farley street is a street 00 feet wide* paved 30 feet in width, and the defendant’s road has a double track for turnout opposite complainant’s premises, leaving only seven feet between the track and the curb of the pavement, and leaving scant room between the track and curbing for a horse and carriage to stand. There are many telephone and electric wires already placed along the street, with which the complainant will desire to connect when he shall occupy his premises as a residence. The premises are in a part of the city devoted to residences, and are chiefly valuable for residence purposes, and the complainant purchased the premises for and intends to use them for a-residence to be erected thereon.

The complainant charges that if, by any means, the electrical current should pass from the traverse wire to the cross-wires, or if any of the telephone or electric light wires .should, by any means, come in contact with the traverse wire, or if a stay wire should come in contact with the traverse wire, danger is incurred of injury to life and property in the immediate vicinity. The insulators used are liable to be broken or impaired, and the wires be displaced, in many ways*—as by storms, winds, cold, moisture, and by substances coming in contact therewith, by design or accident,—and the passing current of electricity be conducted to the ground by such cross-wires, poles, or other conductors which may chance to be at the place. There is danger that the iron rails of the track may become charged with electricity, and, when so charged, are dangerous to persons, horses, and animals coming in contact with them. By the dangers incurred by the employment of electricity by means of such appliances, the premises of the complainant are rendered less desirable for a residence and their .value is seriously impaired; and this system for using electricity imposes an additional burden and servitude on the street inconsistent with its proper use as a street.

In July, 1889, the common councils of the city of East Saginaw and of Saginaw City, by ordinances duly enacted, gave the Saginaw Union Street Railway permission to substitute electricity as a motive power. Pursuant to these ordinances defendant at once began the work of putting in the system commonly known as the “ overhead wire system." In the city of Saginaw, this work proceeded to the extent of establishing and placing jts poles upon either side of the street, and in using those already set under an arrangement made with the owners thereof; the placing of the copper ground-wire and attaching it to the rails to provide for the return current back to the ''dynamos and connecting the poles with the transverse wires, from which to suspend the longitudinal or trolley wire, along which the current was to pass from the power station; and the defendant expended a large sum of money before the filing of the bill of complaint, and before any objection was made by anybody. In East Saginaw the work had been completed upon the Washington street and Genesee avenue lines, and the system was then in successful operation in those streets. Since then, the system has been extended over the defendant’s lines of tracks, comprising about 20 miles in both cities, which cities have recently been consolidated, and are now known as “ Saginaw City,” and these lines are now being operated by electric power.

The complainant has four vacant lots situated at the south-east corner of Washington and Farley streets. Two of them front on Washington street, and' two lie in the rear and front on Hamilton street. These are parallel streets, running north and south, and are intersected by Farley street, which runs east and west along-side of two of the lots owned by complainant. Along the side of these lots defendant's road, as originally built and operated, has a switch to enable cars to pass each other, arid the track was so built that vehicles could pass between the rails and the curb-stone. It has not been changed since it was put down several years ago. Two electric light poles stand on the side of Farley street next to Potter's lots. To these defendant, with the permission of the owner of the poles, attached cross-wares running to the opposite side of the street and attached to poles there. These electric light ¡Doles are about 175 feet apart. No new. or additional poles have been placed by defendant company along-side of complainant’s lots. At the time the bill of complaint was filed the defendant had expended in this work, and in the establishment of its electric system elsewhere, upon its lines of track, over $70,000, and complainant had made no objection to the work done along his lots as stated. Complainant's lots are not inclosed by fences, but are open commons. The proofs taken in the case consist mainly of affidavits directed to the mode of construction and the danger in the use of electricity as a motive power for street railways. The relief asked for by Mr. Potter is that a perpetual injunction be issued restraining the operation of defendant's system by electric power.

Hpon the argument, it was contended that this, method of operating street railways burdened the highway with a servitude, and was not within the intention of the grantor when he platted the ground and dedicated the streets to the public use. Complainant’s counsel also contend that the Legislature has not conferred either upon the city of Saginaw the power to make such a grant to the defendant, or to the defendant to use electricity as a motive power. It is proper that we should eliminate from the case that which is not involved in the issue—

1. The right of the lot-owner to be protected against the digging of holes and placing of poles upon the highway adjacent to his lot.

2. The right of the lot-owner to be protected against burdening the street with a new servitude, such as the laying down of rails and running of street-cars in front of his premises.

Neither of these is involved in the present issue, and, stripped of all outside questions, the issue is the right of the lot-owner to enjoin the use of electricity as a motive power for the propulsion of street-cars. In so far as the exercise of such right may rest upon the legislative grant, we observe that the company is exercising such right, and claims it under legislative authority; and, if the corporation is exercising a franchise or right without legislative authority, such exercise should be inquired into by the State. The complainant is not in a position to raise the question irrespective of an injury to his rights as owner of the property injured thereby.

As to the injury to the lots of complainant by use of electricity as a motive power, no present injury is shown. A mere apprehension that injury may result in the future fs not enough to warrant the court in perpetually enjoining its use, if no injury can be said to exist which is of that character against which courts of equity should enjoin. Moreover, under the facts of this case, the injury is so remote, and the damages apprehended so disproportionate to the ioss which must be entailed upon defendant, by a perpetual injunction, that it should not be granted. It is not every case of injui'y to real estate of a permanent character that equity will enjoin, and the court will look to all the facts and circumstances, and grant or withhold relief as the justice or equity of the case may require. Hall v. Rood, 40 Mich. 46; Buchanan v. Log-Running Co., 48 Id. 364 (12 N. W. Rep. 490); Big Rapids v. Comstock, 65 Id. 78 (31 N. W. Rep. 811);. Blake v. Cornwell, Id. 467 (32 N. W. Rep. 803); Miller v. Cornwell, 71 Id. 270 (38 N. W. Rep. 912). In this case the granting of an injunction would cause defendant a-great many times more loss than complainant will suffer, if all his apprehensions prove true in the use of electricity to propel cars. Besides, if he has the rights claimed by him, he has a remedy at law for their violation, and he should, so far as the facts are now developed, be left to that remedy. For these reasons we do not consider that it is necessary to discuss or decide the points raised and elaborately argued by the counsel for the complainant in this case. He has not shown an infringement of an absolute right which calls for the interposition of a. court of equity in his behalf.

The decree of the court below must be affirmed, with the costs of both courts.

Morse, Cahill, and Grant, JJ., concurred. Lonu, J., did not sit.