Cumberland Telegraph & Telephone Co. v. United Electric Railway Co. , 93 Tenn. 492 ( 1894 )

DISSENTING OPINION.

SnodgRASS, J.

I cannot agree with the majority of the Court as to liability of defendant for injury by conflict of poles on the streets, and my disagreement is based upon the ground that defendant’s use of the street, being the dominant use for a proper street purpose, and the city having in fact authorized and directed the erection of the electric railway poles where placed, the teléphone company, whose occupation of the street, while a lawful and permissive one, was nevertheless not a street use proper, cannot complain because the poles of the electric railway company were' placed on one side of the street when, in fact, they might have been placed on .the other. The telephone company can no more complain of this than could any other property holder on that side of the street complain because poles were not located on the other. If so, when such poles are placed in front of buildings constructed on one side of the street, opposite which there are none, the owners of the buildings may then rightfully complain that the poles should have been placed on the other side, and in front of the vacant property, a clearly inadmissible claim.

It being clear that the telephone company is on the streets merely by permission, and that their occupancy is subordinate to any street use to which the city might wish to devote the streets, when the city has undertaken to use them for electric railway purposes it cannot be hindered in doing so, nor can the telephone company claim damages for such use authorized and directed by the city. The concession or determination that the electric railroad use is a proper street use is conclusive of that question, and neither the city nor the company can be made by the telephone company to select one side rather than another of the street for placing the poles, or pay damages if it does not do so. On this theory alone, too, is based the other conclusion of the majority that the defendant is not liable for damages caused by induction. If not liable for one, it is not for the other. Properly considered, the two conclusions are necessarily in conflict.

It will not do to say the city can let the electric railway company run its wires parallel with the wires of the telephone company on the streets so as to destroy the use of the latter wires and not be liable, and cannot let it erect street railway poles and wires in contact with them without being liable. The right to permit the erection of poles includes the right to permit it anywhere the poles can he properly erected, at the discretion of the city. It cannot be made, directly or indirectly, by imposition of penalty in damages on its grantee, to choose a particular side of the street. The railway use being a street use, the telephone company’s rights, granted in subserviency thereto, must yield to the claim of the city and its grantee for street service. In this connection it must not be forgotten that though, under the Act of 1385, it was permitted to telephone companies to construct their lines along and over the public highways and streets, it was not intended thereby to recognize such use as a proper roadway or street use, for it was in the same Act provided that this permission was granted upon the condition that the ordinary use of such public highways, streets, etc., be not thereby obstructed. It is of course too clear for argument that it is not a necessity, for the operation of a telephone line, that it be erected in the streets. It is a convenience to it of course, and the permission it obtained through legislation was a very desirable one, but it did not obtain it upon any theory that it was a street use, nor can any such claim be made for it. "With or without the 'Act, therefore, it is a subordinate use, permissive only for convenience, and must yield to any claim of the public for legitimate street uses, of which the electric railway is one.

On the main point in controversy — the right of damages for injuries inflicted by conduction — I also disagree with the majority. The majority opinion is founded, and can be founded, alone on the idea that the complainant has the natural right to the use of the earth as a return circuit, for the complainant does not profess to own the intervening earth between points where its wires on the premises of .its several subscribers are buried and its plant. It is only in consequence of this use of the earth, and its natural right to use it, that the telephone company’s intersecting locations at vai-ious places are of value. Disconnect these from the right to use the adjacent earth owned by others thau itself, intervening between • these points and its “ exchange,” and it has no valuable property in its buried wires on the premises of subscribers. So that, in order to deny the defendant the right to use the earth for a return circuit, this very right must be conceded to complainant. And it must logically be conceded that, ■ having-first taken possession, it has acquired a monopoly of the earth.

The position destroys itself, for it must, to bo true, assume the existence of a right in one which has to be taken for granted in order to disprove that the same right exists in another. It is no answer to this to say that complainant has a natural current, not disturbing electrical conditions, or a harmless current. It is not a- natural current, but an artificial one, depending for its existence on the generation and specific direction of increased electric fluid, and along an artificial channel. It is not harmless any more than the other, except that it is not powerful enough to overcome or practically interfere with the other, and in the sense that, in this contact, it produces no obviously injurious results. But it is unnatural, and the hurtful or harmless character, as compared to the other, is different in degree merely, and not in kind, as both are alike artificial and powerful.

Ho scientist has yet been able to show how or where the injurious contact first occurs. Whether it originates on the land where the wires are buried, or elsewhere on the circuit, and pursues its entire round, is a matter of speculation merely. The hurtful overflow or disturbance may, in fact, originate at a point entirely - away from the telephone wire’s intersection with the earth, and on land which the telephone company does not claim; but, assuming the contact and disturbance to commence there, then it could not work an injury, unless, in connection with that particular land, the complainant had undertaken to use the earth away from it as a circuit; and so the injury is not to the specific property, but to the circuit of the earth thus sought to be appropriated and monopolized.

Complainant’s use of the earth as a return circuit was, of course, on the theory we are treating it, a rightful appropriation by complainant, because that of a property, of the earth for such use as is common to all. But it cannot, for that very reason, be an exclusive or monopolistic appropriation. If a right at all, it can only be a natural, common right, and cannot be asserted against the exercise of a like right which may impair it, because it cannot he exclusive property; for such use of the earth as may be made exclusive by monopolizing can never be recognized as property.

Principles deduced from cases of poisoned air, polluted water, obstructed light, etc., are inapplicable, as drawn from plausible hut faulty analogies! These are injuries resulting in specific places to-persons having the right to the free and exclusive enjoyment of so much of these elements as ai’e their own or necessary to their own use. But such rights cannot he enlarged, and these cases-made applicable to the case of a claim to use the-earth for a special benefit from point of contact of a wire (part of an artificial circuit) on one’s own property, to any other remote, point through lands not so owned, and through which the claimant could acquire right of way only by natural inheritance, in common with all mankind, or by purchase. If the right exists as a natural right, it must be common, and cannot be exclusive. It-is not pretended by complainant that it has been acquired by purchase, and, therefore, it does not,, as claimed by complainant, exist at all. That complainant’s private property is not affected, independently of its claim to the use of the earth as-a circuit,- is manifest, for no electric fluid could affect such property in the form of land leased or owned by complainant, unless the circuit — the artificial circuit — was established.

The effect of this holding of the majority is to make the railroad company liable for injury to all property within the influence of its escaping electric current, for it, is assumed that the value for telephonic use of all property within the influence of this current is impaired: If this be true, it is immaterial whether such property is now being so' used or not. The destruction of its capability for such use would necessarily give the right to damages. It must follow, therefore, upon this theory, that all land within .the range of ■ the electric influence of defendant’s circuit is impaired in value, though not a foot of it has any such value without connecting it with an artificial circuit. This injury, it appears to me, cannot, in fact, result, but it must be held to result on the theory of the majority. -The assumption that complainant has the same right to the use of the electric circuit established over adjacent lands, as it has to the support of adjacent land, use of surrounding air, or of water, distantly flowing and finally passing through its property, is obviously fallacious, because all these are natural elements' in natural condition, ultimately naturally brought, without artificial means or special appropriation thereby, for complainant’s use, but complainant’s claim to a special artificial use of the earth' throughout that portion claimed by it, as well as by others, if it is a special artificial use, is not helped by reference to natural conditions, under which his right to the enjoyment of natural elements is conceded.- For, if treated as a natural right, complainant’s claim to. the earth as a circuit cannot exist to the exclusion or hindrance of an equal natural right in another. The proposition is clear that if it is an artificial right, complainant would have to show his claim to so much of the earth as he uses for a circuit as an owner, before, in any event, it could be exclusive. This he does not pretend to do, and, on this account, his claim must fail. If asserted as a natural right, it must be because it is common and not exclusive. It must fail as such, because, if sustained at all, it must be sustained as exclusive. Complainant has, therefore, no real claim of ownership or superior common right, and, on this ground, his claim for damages should be denied.

I have discussed the questions involved only upon principle, but my conclusions on both propositions are sustained by authority.

The first proposition is directly adjudged by the Courts of 1 last resort in Hew York and Ohio, and my conclusion as to the second seems to have the approval of the greater number of Courts which have considered it, though not all together in theory.

In the case of the Hudson River Telephone Co. v. The Watervliet Turnpike & R. R. Co., decided by the Court of Appeals in 1892, and reversing the decree of the Supreme Court of Hew York, cited by the majority, it was held that the telephone company’s use of the street, being a subordinate one, it could not complain of injuries inflicted by tbe overflowing electric current of tbe railway company, because its right was subordinate to that of the railway company. To the same effect is the case of Cincinnati Inclined Plane Railway Co. v. City & Suburban Telephone Association, decided by the Supreme Court of Ohio, 1891. It is proper to say, too, that the Supreme Court of Ohio, in that case, which reversed his decree therein below, has not adopted the views of Judge Taft, elaborately quoted in the majority opinion in this case; nor do the conclusions of the Supreme Court of Ohio and Court of Appeals of Hew Yoi’k, differing from those of Judge Taft and the Supreme Court of Hew York, depend upon statutes or the form of the action, as might be inferred from the majority opinion. It is true that these eases were injunction cases, as was that also-between these same parties to this case, reported in 42 Federal Reporter, cited by the majority, but the questions determined in them adverse to the-conclusions of the majority in this case, were not settled, so far as questions we are discussing are concerned, upon construction of statutes, nor dependent upon form of action, and these States, therefore, by decisions of their Courts of last resort, have ranged themselves on the other side of the question than that taken by the majority of this Court. The weight of authority is against the holding of the majority in this case. I have not, however, attached much importance to the-preponderance of decided cases. The question is practically a new one; the cases on it are few, the reasons for each often different from the others, and none absolutely conclusive. I have preferred to rest this dissent upon its own reasoning.