Floyd v. Ocmulgee Electric Membership Corp. , 65 Ga. App. 305 ( 1941 )

1. There is no liability for interference with a telephone system, using a single wire with the earth for a return circuit, on account of magnetic induction caused by a high-power electric line, in the absence of negligence, malice, or unskilfulness in construction on the part of the interfering electric power line or agency.

2. One maintaining, under lawful authority, a high-tension electric power line along a public road is not liable to the owner of a previously constructed telephone system, rightfully constructed along such road, for the costs of "metallicizing" the telephone system, which constitutes substituting a metallic return circuit for the earth as used by the single-wire telephone system, which "metallicizing" is made necessary by the electromagnetic induction from the high-power electric lines which interfere with the use of the telephone system by causing a loud buzzing sound over the telephone wires and in the telephones to such an extent as to make it difficult and often impossible to hear or understand a human voice over the telephone line, in the absence of negligence, malice, or wrongful construction.

DECIDED JULY 15, 1941. Mrs. W. H. Floyd, trading as the Chester Telephone Company, filed suit in the city court of Eastman against the Ocmulgee Electric Membership Corporation, a corporation having its principal office and place of business in Dodge County, and J. B. McCrary Engineering Corporation, a corporation having its principal office and place of business in the City of Atlanta, County of Fulton. The plaintiff alleged that the defendants had damaged her in the sum of $7893.80 by reason of the following facts: The plaintiff is the owner of the Chester Telephone Company, consisting of a central exchange located in the City of Chester and County of Dodge, with sixty telephone stations connected through circuit lines and equipment over an area of fifty-eight miles from the central office in Chester, to various places in that county, the lines covering rural stations. The plaintiff, together with her predecessors, has owned the franchise and easements with such lines for more than thirty years. The plaintiff in 1925 acquired the telephone exchange, lines, equipment, and easements from E. H. Floyd who had acquired them from Homer Mullis in 1920. Homer Mullis acquired this telephone system from E. L. Curry in 1910, and Curry had owned it for several years before that time. The franchise was granted by the Town of Chester, a municipal corporation, and the plaintiff's central exchange as well as part of her telephone lines are located in that town, but these lines continue out of the incorporated limits thereof and into the rural sections. The portions of the plaintiff's lines which are located in the rural sections are not located on the rights of way of the public roads along which they are maintained, but are off the rights of way of these roads from ten to fifteen feet on private property, and have been there and used, repaired, and improved by the plaintiff and her predecessors for more than twenty years, and the easements where the lines are located have been claimed by the plaintiff and her predecessors and held and used openly, notoriously, publicly, peaceable, and uninterrupted, and accompanied by possession adversely to others and improvements by the plaintiff and her predecessors for more than twenty years. These lines follow the regular bending curving course of the public roads alongside of which they are located.

These telephone lines were constructed and maintained under a single line, ground circuit system, and until about March 5, 1939, the lines and system gave efficient and satisfactory service. The Ocmulgee Electric Membership Corporation was created under authority of the electric membership corporation law enacted by the General Assembly of Georgia in 1937, for the purpose of maintaining electric lines and distributing electric energy into the rural sections of Dodge, Bleckley, and Pulaski Counties, and selling at retail electric energy and electric appliances. It is a corporation organized for pecuniary gain. After the corporation had been organized under this law, and after the localities or areas it desired to serve had been determined on, and about August 14, 1938, it entered into a contract with the J. B. McCrary Engineering Corporation to survey, map out, locate, and supervise construction of a system of "6900 voltage high-powered electric power lines," which were to be energized with current to be distributed into the rural localities above referred to when the engineering corporation became satisfied that the lines had been sufficiently constructed so that this could be safely done. A copy of this contract was attached to the petition as an exhibit. In February, 1939, the engineering corporation located and supervised the construction of such electric lines on right of way easements furnished by the electric corporation along the public roads over which the plaintiff's telephone lines in Dodge County were maintained. When the engineering corporation came to a bend or curve along the public roads it surveyed and located the power lines straight across such bend and curve, and across the plaintiff's telephone lines, and the power lines crossed such telephone lines nineteen times. In so doing the engineering corporation caused such electric lines to be located and constructed parallel to the plaintiff's telephone lines and on the same side of the public roads and within five feet thereof.

During the surveying and mapping out of the proposed routes of such electric lines the plaintiff warned the defendants that to locate and construct these lines in such close proximity to her telephone lines would, when the electric lines were energized, cause electro-inductive interference, and would injure and impair the telephone service over her lines. At the time the engineering corporation was surveying and locating the routes for the electric lines one James Otis Mills was its agent and employee, and was engaged in surveying the routes, and the plaintiff, acting through her husband and agent, W. H. Floyd, warned Mills that to locate the electric lines in such close proximity to the telephone lines would, when the electric lines were energized, cause electro-inductive interference with the telephone lines, and would injure the telephone service. Thereafter, and about the time the electric lines were being energized, Mills ceased to be an employee of the engineering corporation and was employed by the electric corporation, and at that time the plaintiff warned Mills as an agent and employee of the latter corporation that the energizing of the electric lines was injuring and impairing the service on her telephone lines, and would continue to do so if these electric lines were maintained in such close proximity to the telephone lines. Despite these warnings the electric lines were so located and constructed. Irrespective of these warnings the defendants knew, or in the exercise of ordinary care and diligence should have known, that such location of the high powered lines would, when energized with current, cause electro-inductive interference with the telephone lines and destroy the service thereof.

On or about March 5, 1939, the electric lines having been located and constructed as above stated, they were energized with current by the defendants, and at all times since then these lines have been highly energized and charged with current, and they have been used and maintained by the electric corporation in distributing at retail for pecuniary gain electric current to its patrons along the lines. Before the energizing of the electric lines the plaintiff's telephone system gave efficient and satisfactory service, but immediately upon these lines being energized with current, and at all times since then, the energizing thereof has caused electro-inductive interference with the plaintiff's telephone lines and system, resulting in a "din of buzzes, screeches, noises, and hisses, drowning out conversations and communications over said lines, rendering said telephone lines and system inoperative and useless." Before this the plaintiff enjoyed a reasonably lucrative business from the use of her telephone system, and it was a going concern having an average annual net income of $1800.

It was not necessary for these electric lines to be located, constructed, and maintained on the same side of the public roads as the plaintiff's telephone lines and within such close proximity thereto. These lines could easily have been located, constructed, and maintained on the opposite sides of the public roads from the plaintiff's telephone lines, or at least 200 feet therefrom, and accomplished the same end without additional expense or inconvenience to the defendants. If these lines had been located, constructed, and maintained on the opposite sides of the roads or 200 feet from the telephone lines the electro-inductive interference with the telephone lines referred to would not have been caused, and the telephone service would not have been rendered inoperative and useless. The right of way easements did not confine the defendants to this locality, but authorized the location of the electric lines farther away and over 200 feet from the telephone lines. The telephone lines are located from ten to fifteen feet from the public roads, and the rights of way of such roads are about thirty feet wide, and if the defendants had located the electric lines on the opposite sides of the roads from the telephone lines they could have been located 200 feet away from the telephone lines and still have been within 155 or 160 feet of the roads which the defendants could have done under the blanket easements held by the electric corporation. The easements held by the electric corporation and granted by the several landowners authorized the location of the electric lines anywhere on the lands of the owners, but did not confine the location thereof on the same side of the road with, or in such close proximity to, the plaintiff's telephone lines. The defendants could have located the electric lines on the same side of the road and 200 feet from the plaintiff's telephone lines, or they could have located such electric lines on the opposite side of the road 200 feet from the plaintiff's telephone lines and 155 to 160 feet from the roads, and avoided the injury to the telephone service. In any event it was necessary to remain 200 feet away from the plaintiff's lines to avoid the electro-inductive interference with the telephone lines in sufficient degree to protect her telephone service, and the defendants could have done this under the easements furnished the electric corporation without additional inconvenience or expense, and accomplished the same end and the purpose of the project. The location and maintenance of the electric lines as they now are was and is unnecessary and unjustifiable, has caused and is continuing to cause, and will always cause, such interference to the extent of causing a "din of buzzes, screeches, noises and hisses drowning out conversation and communications over her telephone lines, rendering the same inoperative and useless."

Neither of the defendants ever made any effort to condemn the plaintiff's telephone lines or easements, and the "unnecessary, unjustifiable, wilful, and negligent acts" of the defendants in locating, constructing, energizing, and maintaining these electric lines in such close proximity to the plaintiff's telephone lines and destroying the use of the plaintiff's private property violated the due process clause of the constitution of this State, and also violated article 1, section 3, paragraph 1 thereof which provides that private property shall not be taken and condemned for public purposes without just and adequate compensation being first paid. The "wilful, unnecessary, unjustifiable, and negligent acts of the defendants were the proximate cause" of the plaintiff's damages. Such acts of negligence are specified in part as follows: (a) the engineering corporation was negligent in surveying, mapping out, and locating such high-powered electric lines in such close proximity to the telephone lines as to cause electro-inductive interference when such location was unnecessary. (b) The engineering corporation was negligent in supervising construction of such electric lines in such close proximity to the telephone lines as to cause such interference, and in energizing the lines so located. (c) The electric corporation was negligent in failing to inspect these high powered electric lines to determine whether they could be energized and used by them without injury and damage to others. (d) The electric corporation was negligent in accepting and maintaining the high-powered lines so located as to do damage to the plaintiff, and in allowing or causing these lines to be energized with current. The electric corporation was and is negligent in continuing to keep and maintain these electric lines "highly energized with electric current," when this continuance to produce electro-inductive interference with the plaintiff's telephone lines unnecessarily damages her. Such wilful and negligent acts of the defendants created a nuisance. The acts of the engineering corporation in surveying, mapping out, locating, and supervising the construction of the electric lines, in such close proximity with the telephone lines as to cause such interference therewith, when this was unnecessary and unjustifiable, and in energizing these lines, created a nuisance. The electric corporation in accepting the electric lines so located and constructed and in energizing and maintaining them is maintaining a nuisance.

The engineering corporation demurred to the petition on the ground that the allegations disclose that this defendant is a resident of Fulton County and is not jointly liable with the other defendant, a resident of Dodge County, and therefore the court is without jurisdiction of this defendant and of any cause of action against it. It further demurred to the petition on the ground that the allegations thereof are insufficient in law to make a case against it, or to show any right of recovery against it, and because the petition defined and disclosed no negligence on the part of this defendant relative to the matters complained of. It further demurred on the ground that the petition fails to set forth a cause of action against either defendant, in that the electric corporation is a quasi public corporation, and in the location, construction, maintenance, and operation of the electric lines was and is exercising a public and governmental function, and in the adoption of a plan for the construction of such lines and the location thereof was in the performance of duties of a quasi-judicial nature, involving the exercise of judgment and discretion, and no act of negligence on the part of either defendant is alleged or disclosed in the execution of the work in carrying out such plan. This defendant also demurred to the petition on various special grounds.

The Ocmulgee Electric Membership Corporation demurred to the petition on the ground that no cause of action was set forth, and because the facts alleged, exclusive of the conclusions of the pleader, failed to show the breach of any duty on the part of this defendant toward the plaintiff, and failed to show any duty owed by this defendant to the plaintiff. This defendant demurred to the petition on the ground that the wrong measure of damages was alleged, and also on various special grounds.

The plaintiff amended her petition. The defendants renewed their demurrers, general and special. The judge did not pass on the special demurrers, but sustained the general demurrers and dismissed the action. The plaintiff excepted. This is a suit by the owner of a single-wire, ground-circuit, telephone system, to recover as damages, for the alleged destruction of the use of her telephone system by the defendants, the cost of "metallicizing" the plaintiff's telephone lines. The plaintiff alleged that the location and operation by the defendants of a high-tension electric-light and power line near her telephone line created "electro-inductive interference" with the telephone line, and caused a "din of buzzes, screeches, noises, and hisses, drowning out conversations and communications over said lines, rendering said telephone lines and system inoperative and useless." A survey of the authorities on the question discloses that in a case involving conflicting uses of electricity a stricter rule is applied where the interference is caused by "conduction" than where the interference is caused by "induction" of electricity to a single wire, ground-circuit, telephone line. This is so for the reason that interference by conduction can be practically eliminated by the proper erection and maintenance of a hightension electric power line. The term "induction" is here used in the sense of the flow of electricity from one wire to another without actual contact, and through the medium of the atmosphere, and the term "conduction" is used in the sense of the flow of electricity from one wire to another without actual contact, and through the medium of the earth. See Kesbey, Electric Wires, § 214; Deiser, Conflicting Uses of Electricity, 12 et seq.; 23 A.L.R. 1260, note; Dakota Central Telephone Co.v. Spink County Power Co., 42 S.D. 448 (176 N.W. 143); Yamhill County Mutual Telephone Co. v. Yamhill Electric Co.,111 Ore. 57 (224 P. 1081, 33 A.L.R. 373).

The question for decision under the pleadings is whether a telephone company using only one wire with the earth as a return circuit, the earlier occupant of a public highway or rural country road, or an electric power and light company, the later occupant, using a high-tension current, shall bear the expense of installing a metallic return circuit in the telephone lines in order to eliminate the "electro-magnetic induction of the telephone lines by the power lines." While interference by conduction may be practically eliminated by the proper erection and maintenance of the power line, this is not true of electro-magnetic induction. As to interference by magnetic induction, which is the transmission of electricity from one electric circuit to another by means of an electric field (see Curtis on Electricity, § 349), no duty rests on the defendants in the construction and maintenance of the electric power lines to eliminate such interference. Electro-magnetic induction may be practically prevented by a co-ordinate transposition of wires on both the high-tension electric lines and the single-wire telephone lines. This may be accomplished only where the electric circuits on both systems are metallic. Hence the remedy can not be applied to an earth-return telephone line. This is the reason that the courts have generally held that one maintaining under lawful authority a high-tension electric power line along a public road is not liable to the owner of a previously constructed telephone system, rightfully constructed along such road, for the cost of metallicizing the telephone system, which constitutes substituting a metallic return circuit for the earth as formerly used by the single-wire telephone system, which metallicizing is made necessary by electro-magnetic induction from the high-power electric line which interferes with the use of the telephone system by causing a loud buzzing sound over the telephone wires and in the telephones to such an extent as to make it difficult, and often impossible, to hear or understand a voice over the telephone line. The only duty owing by the electric power company to the owner of the telephone system is to properly construct and maintain the high-tension electric power lines. The law is settled in this State, as well as in other jurisdictions both in America and England, that there is no liability for interference with a telephone system, using a single wire with the earth for a return circuit, on account of magnetic induction caused by a high-power electric power line, in the absence of negligence, malice, or unskilfulness on the part of the interfering electric power line or agency. "A power company, lawfully maintaining its power lines, constructed according to the standards of modern engineering, on one side of a public highway, is not liable for inductive interference of a telephone line on the other side of the highway, or for the cost of metallicizing the telephone line so as to prevent such interference, where the telephone was a single-wire system, with a return circuit through the ground, which was not in accordance with the standards of modern engineering. . . In order for the defendant power company to be liable in the premises, the evidence would have to authorize a finding that it wrongfully and negligently constructed its power lines, and in so doing, injured and damaged plaintiff's telephone system." Georgia Power Co. v. Parker, 48 Ga. App. 807 (2) (173 S.E. 730); Georgia Power Co. v. Parker, 51 Ga. App. 546 (181 S.E. 117). In Citizens Telephone Co. v. Fort Wayne c. Ry. Co.,53 Ind. App. 230 (100 N.E. 309, Ann. Cas. 1916A, 132), the Court of Appeals held that where a telephone company and an electric railway company, operating under city franchises, place their poles and wires on the street, and the current over the telephone wires is interfered with by conduction or induction from the higher voltage current carried over the other company's wires, the railway company is not liable in damages to the telephone company unless it has exceeded its rights, been negligent in its construction, used faulty or improper appliances, or in some way unnecessarily caused injury, even though it might have constructed its railway elsewhere. As stated by that court: "It can not be said that the mere fact that appellee constructed its line of railroad with its high-voltage system of electricity necessary to propel its cars, in close proximity to appellant's wires, on a public highway, when it might have been constructed elsewhere, would of itself constitute an act of negligence on which appellant could base a cause of action."

In the case now before this court the petition fails to show any negligence by the defendants in the construction and maintenance of the high-tension electric power lines. It is not alleged that the defendants used faulty or improper equipment, material, and appliances in the construction and maintenance thereof. Stripped of conclusions, the petition shows only that had the defendant constructed the electric lines elsewhere, and not so near, on and along the same highway right of way, and parallel with the telephone lines, the consequent damage to the telephone line and system would not have resulted. It is alleged that the defendants were informed by plaintiff, before the construction of the electric lines, that to construct and maintain such lines so near to the telephone wires would cause damage to the latter and would injure plaintiff's telephone system, and that thereafter, when the electric lines were being constructed, the plaintiff again informed the defendants that the electric lines were injuring the telephone system. It is also alleged that the electric lines were constructed so as to cross over the telephone wire some nineteen times, and to run within five feet thereof, and it may be inferred from the allegations that the electric lines could have been as easily and economically constructed far enough from the telephone line to avoid the interference. It also appears that at no additional trouble and expense the electric lines could have been constructed not so near the telephone line, and the same advantages afforded to the patrons of the electric lines, that is, that they could have been just as well served thereby. It is alleged that under the easements granted to the electric association by the legislature the electric lines could have been constructed at a greater distance from the telephone line, and have "accomplished the same end and the purpose of the project." It is alleged that the construction therefore of the electric power lines so close to the telephone line, after the defendants had been warned of the fact that the telephone line would be thereby injured, and when such electric lines could have been constructed at a greater distance from the telephone line without additional expense and trouble, and have served the same purpose, constituted "unnecessary, unjustifiable, wilful, and negligent acts" on the part of the defendants. The facts alleged do not show any wilfully negligent acts on the part of the defendants. It does not appear that the defendants "wrongfully and negligently constructed its power lines." Neither does it appear from the allegations that there was any malice or unskilfulness on the part of the defendants in the construction and maintenance of the electric lines. The allegations of the petition allege a state of facts for application of the general rule that there is no liability for interference with a telephone system, using a single wire with the earth for a return circuit, on account of magnetic inductive interference caused by a high-power electric line, in the absence of negligence, malice, or unskilfulness on the part of the interfering electric power line or agency.

We quote with approval the following from the able opinion rendered by the trial judge, the Hon. D. D. Smith, judge of the city court of Eastman, overruling the motion for new trial: "There is no contention in the petition that the lines are not constructed according to the standards of modern engineering. The sole claim is that they were placed too close to plaintiff's telephone line, and in her petition the plaintiff alleges as a fact as follows: ``That in any event it was necessary to remain 200 feet away from petitioner's lines to avoid the electro-inductive interference with petitioner's telephone lines, in sufficient degree not to destroy her telephone system.' Construing the pleading most strongly against the pleader the plaintiff's petition sets forth a cause in which she claims that the defendants would be compelled to construct lines at least 200 feet from her lines in order to save her alleged injury. If this were the case, since it is a matter of common knowledge that farm houses are located on both sides of public highways, it would create a situation where the electric corporation would have to run its lines in some instances in fields and through woodland on one side of the road 200 feet from plaintiff's telephone lines, and then, no doubt, switch to the other side of the highway the same distance from said telephone lines. An examination of the electric membership corporation act does not lead one to believe that was the legislative intent, because in that act the General Assembly in specific terms said that corporations formed thereunder should have the power to use any highway in their operation. If plaintiff's position, as set forth in her petition as amended, was tenable the defendant corporation would be denied the privilege of using the highway as granted by the General Assembly. Their lines would have to be constructed in the neighborhood of 200 feet away from the public highway. So, the only act of negligence or the only wrongful act plaintiff sets forth on the part of the defendant corporation is in establishing its lines within 200 feet of her telephone lines, and the court is of the opinion that with the General Assembly conferring upon the electric corporation the privilege of using the highway, that such use could not be considered as wrongful, or as a negligent act, or as a nuisance."

It follows that the judge did not err in sustaining the general demurrer and dismissing the action. Under the allegations of the petition the maintenance of the defendants' power line does not constitute a nuisance.

Judgment affirmed. Sutton and Felton, JJ., concur.