Loeber v. Butte General Electric Co. , 16 Mont. 1 ( 1895 )

Hunt, J.

By the admission of plaintiff, lots 13 and 14 were included in the townsite of Butte originally filed in the office of the county clerk and recorder of Deer Lodge county, Mont. It was also admitted that the townsite was entered for patent, and patented to the probate judge of Deer Lodge county, Mont., in 1877, under provision of the act of congress entitled ‘ ‘An act for the relief of the inhabitants of cities and towns upon the public lands,” approved March 2, 1867, and the acts of the legislative assembly of the territory of Montana, January 12, 1872, and July 22, 1879. It was further admitted that the townsite was surveyed, and that the alley in question in this action, and lying east of the lots upon which were situated plaintiff’s buildings, was embraced and included in the original plat of the townsite, and that the said alley has always been used as a public alley, and that the plaintiff derived title of the lots through the probate judge under the patent of said townsite, and according to the plat thereof. The fee in the alley was therefore originally in the United States. The United States granted it to the trustee of the townsite. The trustee was required by law to see that a survey of the plat was made and filed in the proper office, showing the blocks, lots, streets and alleys. The streets and alleys therefore became dedicated to the public use before the conveyance of the lots to plaintiff or his predecessors. (Hershfield v. Rocky Mountain Bell Telephone Co., 12 Mont. 102.) The plaintiff, therefore, is not the owner in fee of the alley in which the defendant erected its poles. Nor can he complain in this action, if the city of Butte had the power to permit the defendant to erect electric light poles wherewith to light the city, unless by erecting such poles an additional or unusual servitude was imposed upon the easement granted by the city. But we think that a pole used for electric light purposes is within an urban servitude where it appears that the pole in question is intended to serve public interests. (Rand. Em. Dom. § 101; Keasbey, Electric Wires, § 91; McCormick v. District of Colu/mbia, 51 Am. Rep. 281.)

In considering the use of streets where electric railroad poles are erected, — and a use for electric light poles should be similarly regarded, — the courts sustain, generally, the principle recognized in Hershfield v. Rocky Mountain Bell Telephone Co., supra, that “any use of a street which is limited to an exercise of the right of public passage, and which is confined to the mere use of the public easement, whether it be by old methods or new, and which does not tend in any substantial respect to destroy the street as a means of free passage, common to all the people, is perfectly legitimate. ’ ’ By such uses the rights of the abutting owners are not invaded. It is simply a user of a right already vested in the public. (Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380, 20 Atl. 859; Gay v. Telegraph Co., 12 Mo. App. 485.)

We fail to see how a pole 12 or 15 inches in diameter, 20 feet distant from the doorway, can impede free ingress to the rear entrance of plaintiff’s beer hall.

The power to light the streets of the city of Butte has been delegated to the municipality by the legislature. (Comp. St. Mont, page 671.) By ordinance of the city council the defendant was authorized to erect poles throughout the city, and on one side of the street only. Under the authority and permission of the city the defendant, therefore, properly erected, or was about to erect, tbe particular pole complained of, in the alley in the rear of plaintiff’s lots.

The testimony establishes the fact that there is no serious interference with the air or light to plaintiff’s property, or access thereto. The use of the street for the contemplated purpose is in no wise repugnant to the general use to which streets of cities may be appropriately put in yielding to the necessities for the convenience and comfort of the inhabitants thereof. (Tuttle v. Brush Electric Illuminating Co., 50 N. Y. Super. Ct. Rep. 464; Hershfield v. Rocky Mountain Bell Telephone Co., supra.)

The pole was being erected at the most convenient and suitable place. It was necessary to the successful conduct of the defendant’s business in lighting the streets of the city. Considering all these facts, the plaintiff cannot complain. (Johnson v. Thompson-Houston Electric Co. (Sup.) 7 N. Y. Supp. 716; Keasbey, Electric Wires, § 89; Electric Construction Co. v. Heffernan (Sup.) 12 N. Y. Supp. 336; Lewis, Em. Dom. § 130.)

From all the evidence, and the pleadings, and the principles of law applicable thereto, we are of opinion that there was no unreasonable use of the streets by the city, and no substantial interference with any of the rights of plaintiff. A court of equity will not, therefore, interfere.

The judgment of the district court is reversed, and the cause remanded, with direction to dissolve the injunction heretofore granted.

Reversed.

De Witt, J., concurs.