Tri-County Mutual Telephone Co. v. Bridgewater Electric Power Co. ( 1918 )

SMITH, J.

Appeal from am order sustaining defendant’s demurrer to appellant’s complaint. Tine following lis a sufficient statement of tine ifbcfc stated in tine -complaint to present the questions upon this appeal:

The plaintiff, a South Dakota corporation, pursuant to, 'and in compliance with, the statutes of this state, in a proper manner constructed its telephone lime upon and along .certain highways in McOcOk county, 'and operated ©aid line a number of years prior to September x, 1915.

The -defendant, a corporation, likewise 'organized under the laws of .this state, and being thereunto .duly authorized, on or about September 1, 1915, commenced Ito .erect 'and construct ¡a line olf wire for tlhe -purpose Wf transmitting elec-tri-c current from; its power plant ini the city bif Bridgewater in 'McCook ciou-nty to ithe town of -Emery in Hanson county, and! ooimpilteteldi said line without plaintiff’s consent, and without knowledge on th-e part of plaintiff- that the ©aid1 line was so constructed! that its operation would -c'au'se -interference with the telle-p-bone -line of plaintiff ; that -said transmission line and1 wire extended! along certain portions of ithe public highway© occupied) by 'plaintiff’s telephone line, citsis-e-dl -saiildl teleplhlooe line at certain points, and paralleled1 the .sarnie at certain- plaices described; thlat the crossing -and paralleling •o-f plaintiff’© line by s'aiid transmission line, and' the operation- of.sialidi ¡transmission line, has -destroyed ainidi will continue to destroy absolutely the uiste olf plaintiff’s telephone line for the purpose for ■which) ilt was constructed', io that, about Miay '29, 1916, the de•fen-dlant icommienced to -transmit and ev-e-r since has- continuotisly transmitted1 electric -current -over its s-aid line; that plaintiff’© telephone line iis affected by thie current so transmitted!, through 'becoming partially charged1 with electricity from the defendant’© 'line, -causing noises and sounds whichi render it -impossible for plaintiff’s patrons to uis-e its line, an-d entirely destroy the use •¡thereof, -Causing p-laintiff great land irreparable -damage -and rendering . ©aid telephone line wholly uisefesis -and of n-o- Valkie What.--eveir; (that plaintiff ¡has demanded that defendant refrain, from transmitting eleotri-c current -over its ©aid lime, or that it so re•oonstruict its line a© not to interfere with plaintiff’s line, which -request defendant has refused-. Plaintiff alleges that it has no ;plaim, speedy, or adequate remedy at law, and that the continúamele 'oif isuchi acts ■ -on the part of defendant will- result in- ia multiplicity -o-f isUiiits-; Ithiait -any -damages which plaintiff -might seek tbi collect wi§ be difficult or -impossible to aecertain, and would be largely speculative, -and plaintiff therefore prays judgm-e-nt that tire defemidlant be perpetually restrained -and enjoyed from transumiitting electric current -over its said line in any manner which will interfere wi-th the use, maintenance, and- 'Operation of plaintiff’s ■ telephone line, -and for other relief as- may seem juis-t and proper in Itih-e premises.

[1] Defendant demurred to the complaint u-pon two- grounds, "The -demurrer was -overruled as to <tbe first and sustained as to -.the second- ground, viz., that the -complaint does -n-ot state facts sufficient to constitute a cauise of action. Chapter 369, Laws 1913, authorizes the constraction and maintenance along the public highways of this state Of Wires and poles for the transmission of electricity. But section 1 of the iatet which grants this authority contains this proviso;:

“Provided that such transmission line shal not interfere with the service of any telephone or telegraph 'lines; already constructed! on such highways.”

Appellant’®' priority in time Is admitted by the demurrer, but respondent contends that no superior right isprings frota the alleged' pribr tiis,e of highways by the plaintiff, in that both the telephone company and efectric 'company have an equal right to file use of the ¡highway, and that something more than damage imcidlemtal fa the usd oif its1 line must appear, viz., 'something in flue nature of an abuse of the framchise by the 'defendant to entitle Ithe injured) party toi 'damages or injunlcitiOinal relief.

[2] Appellant therefore 'contends that the complaint i's de^fecbiiv’e in that it cl'oels not allege either that defendant’s line is improperly 'constructed or operated. It lis apparent, however, that if defend'amt’s right to erect and operate its transmission line is subordinate to the prior right Of plaintiff, sixclb 'allegations would be wholly immaterial.

[3] Respondent also contends that: the plaintiff claim's rights under the allegations of the complaint, other than the rights protected by the proviso above quoted, viz. the right to the exclusive use Of tine ground or earth fiar its return circuit.

[4, S] The complaint contains' no .allegations; from which ■such use, or claim to such use, can ,be inferred. It alleges that the telephone line wa® properly constructed anld Used, and upon demurrer we ‘are not calad upion to surmise as to the mode of its construction or use. In moist jurisdiction® where this question has arisen the courts have held that priority in time carries with it priority of right, even-in, the absence of a 'statute expressly recognizing and protecting such right. Central Union Telephone Co. v. City of Conneaut, 167 Led. 274, 93 C. C. A. 196; Western Union Telegraph Co. v. Los Angeles (C. C.) 76 Fed. 178; Western Union Telegraph Co. v. Guernsey Light Co., 46 Mo. App. 120; Edison Electric Light & Power Co. v. Merchants’ & Manufacturers’ Electric L., H. & P. Co., 200 Pa. 209, 49 Atl. 766, 86 Am. St. Rep. 712; Paris Electric L. & R. Co. v. S. W. Telegraph & Telephone Co. (Tex. Civ. App.) 27 S. W. 902; 9 R. C. L. p. 1194, § 9; 15 Cyc. 469; Bell Telephone Co. v. Belleville Elec. Light Co., 12 Ont. (Can.) 571; Nebraska Telephone Co. v. York Gas & Elec. Co., 27 Neb. 284, 43 N. W. 126. The proviso Contained ini section 1, c. 369, Laws 1913, above quoted, is a clear recognition) arid adoption df the rule announced in these '(1160131005. Section 1 of the act expressly declares that the right to erect and maintain poles and wires for the transmission of electricity for lighting and ipower purposes along aniy public highway is .subject to the conditions named in the act, and to such further reasonable regulations as the Legislature may hereafter prescribe. The act further declares that the grantee shall not in any case have the exclusive right ito use sudhi highway for the conducting of electricity. It also specifies certain, things with reference to the miodfe of Construction of sriclh transmission lines, and the duty to keep the s'ame in repair, and declares that any .person, firm, or corporation having received! such grant who fails to comply with the .provisions of .the act shall -be punished by fine. The authority of -the Legislature to prescribe dcnditions upon which the right to use the public highway for the erection of transmission lines fe granted eanpot be questioned, and su'ch conditions are binding upon those who seek to exercise the right tendered by the statute.

Respondent’s contention that .appellant’s remedy lies in an action fear (damages for ’the injury and not through injunctional rellieif cannot be sustained. The cases above referred to and many others which, might be cited .clearly sustain the night to such relief. lit follows that the order of itlhie trial court must be reversed, and the Cause remanded fiolr further proceedings according to latw.