Mitchell v. Southern New England Telephone Co. , 90 Conn. 179 ( 1916 )

The Southern New England Telephone Company is the only defendant. The allegations of the complaint that the American Telephone and Telegraph Company were and are participating in the wrongful acts charged against the defendant, or were and are engaged in acts similar in kind to the defendant's, are wholly immaterial, in the absence of an averment of some relation between them, and they have no rightful place in it. It should be read as charging the defendant with the acts complained of as wrongful.

The acts thus complained of are that it has constructed and is utilizing, for the transmission of messages, the wires and cable of a telephone line suspended over and along the highway in front of the plaintiff's premises. When this construction took place is not alleged.

These acts of construction and operation are averred to have been and to be unlawful, for the reasons: (1) that the company has no legislative authority therefor; (2) that if it possesses such authority, it is one for the taking of land for private use; (3) that such authority contains no provision for compensation for the taking of a right of way over the plaintiff's land; and (4) that the defendant wrongfully failed to have the damages to the plaintiff's premises assessed and paid before the construction and operation of the line.

The two alleged reasons, that the defendant has no legislative authority to construct and operate the line, and that, if so, that authority contains no provision for the payment of compensation for the taking of the right of way therefor over the plaintiff's land within the highway, are effectually negatived by the provisions of statutes antedating the layout of the highway in question, of which statutes the courts take judicial notice. General Statutes, §§ 3903, 3907; Id. (1888) §§ 3944, 3948; Revision of 1875, p. 341, Part X, §§ 1, 5; Public Acts of 1879, Chap. 36, p. 381.

The allegation that any authority the defendant may have to take land for its uses is one for a taking for a private use, is the assertion of an unsound legal proposition. New York, N. H. H.R. Co.'s Appeal,80 Conn. 623, 629, 70 A. 26.

The remaining allegation, that the defendant wrongfully failed to have the damages to the plaintiff's land, by reason of the construction and operation of the line in front of it, assessed and paid before construction, is insufficient to show that the defendant's acts have been or are in violation of the plaintiff's rights, in the absence of an allegation that the consent of the owner was not obtained. If that consent was given, the company was not called upon to condemn. The demurrer to the complaint was, therefore, properly sustained.

The demurrer to the prayers for equitable relief was well made. Following a demand for legal relief by way of damages in the amount of $100, the plaintiff asks equitable relief (1) by way of an injunction restraining the defendant, its successors and assigns, from using the lines in front of the plaintiff's property, and (2) by way of a mandatory order directing the removal of them.

Did the complaint show an invasion of the plaintiff's rights, the situation would not be one where the equitable relief prayed for could properly be granted. In the first place, it is not shown that the damages to be anticipated in the future by the continuance of these lines and their use would be irreparable. Enfield TollBridge Co. v. Connecticut River Co., 7 Conn. 28, 50;Whittlesey v. Hartford, P. F. R. Co., 23 Conn. 421,433. Again, the law affords other full and adequate remedy, as, for instance, in the provisions of § 3907 of the General Statutes, entitling landowners, in such cases, to have damages assessed and satisfied upon application to any judge of the Superior Court. Still again, the harm which would be done and loss incurred and inconvenience suffered to and by the public, as well as the defendant, would be so out of proportion to the injury to the plaintiff by the continuance of the present conditions that it would be an unwarranted exercise of the equitable powers of a court to occasion the greater evils in the attempt to correct the infinitely smaller wrong which might otherwise be redressed and remedied. Enfield Toll Bridge Co. v. ConnecticutRiver Co., 7 Conn. 28, 50; Whittlesey v. Hartford, P. F. R. Co., 23 Conn. 421, 433; Hawley v. Beardsley,47 Conn. 571, 573; Fisk v. Hartford, 70 Conn. 720, 732,40 A. 906.

There is no error.

In this opinion the other judges concurred.