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Pierce v. Drew.

The majority of the court is therefore satisfied that the demurrer to this bill was properly sustained, and the entry will be, Decree affirmed.

NOTE BY THE REPORTER.-C. ALLEN, J., delivered the following dissenting opinion: "A minority of the court, consisting of Mr. Justice WILLIAM ALLEN and myself, are unable to agree with the majority of the court upon the principal question in this case, which is this: When the public has acquired an easement in land for a highway, by taking it under the right of eminent domain, by prescription, by dedication, or by grant, is an additional servitude to be deemed as imposed by appropriating the highway, under legislative authority, for the use of a line of electric telegraph, by the erection of poles and wires above the surface of the ground, so that the owner of an abutting estate and of the soil to the center of the highway is entitled to further compensation therefor? The corresponding questions are necessarily involved, whether when land is taken for a highway by the right of eminent domain it is to be considered as an element of the damages sustained by the owner, and to be paid by the city or town, that the land may be used, not merely for a highway, but also for a telegraph line; and whether in case of a dedication or grant of land for a highway, with or without the payment of a consideration, the right of establishing a telegraph line along the highway, under the authority of general or special statutes, is also included by implication.

"If such owner is in law entitled to further compensation, it is plain that the statute fails to meet the constitutional requirement, inasmuch as no adequate provision for such compensation is made. A mere right of action at law is not sufficient. Connecticut River Railroad v. County Commissioners, 127 Mass. 50; s. c., 34 Am. Rep. 338.

"It has been held in this Commonwealth and elsewhere, though without entire uniformity of decision, that the establishment of a street railway does not entitle the owner of the land to further compensation. Attorney-General v. Metropolitan Railroad, 125 Mass. 515; s. c., 28 Am. Rep. 264. Recognizing this decision as founded on just principles, the question remains, whether the same rule applies to other uses, and with what limitations, if any.

"The great weight of opinion thus far expressed by courts is that street railways, with cars propelled by horse power, are not to be regarded as imposing a new servitude which will entitle the owner of the fee of the highway to additional compensation, but that steam railroads are to be so regarded. It is considered that the latter use is so far different in its nature, that the law ought to take notice that it could not have been within the contemplation of the parties that the laying out of an ordinary highway should also include such a mode of travelling. While it is always recognized that the proper and contemplated use of the highway is not to be deemed limited to such vehicles as are in use at the time, it is considered to be too great an extension of the easement acquired by the public to hold that it embraces its use for a steam rail. way. At this point the line has been drawn by a great weight of judicial de. cision. See Williams v. New York Central Railroad, 16 N. Y. 97; Wager v. Troy Union Railroad, 25 id. 526, 535; Jersey City & Bergen Railroad v. Jer

Pierce v. Drew.

sey City & Hoboken Horse Railroad, 20 N. J. Eq. 61; Imlay v. Union Branch Railroad, 26 Conn. 249, 255; Grand Rapids & Indiana Railroad v. Heisel, 38 Mich. 62; Sherman v. Milwaukee, Lake Shore and Western Railroad, 40 Wis. 645; Kucheman v. Chicago, Clinton & Dubuque Railway, 46 Iowa, 366; Kaiser v. St. Paul, Stillwater & Taylor's Falls Railroad, 22 Minn. 149; Southern Pacific Railroad v. Reed, 41 Cal. 256; Cooley Const. Lim. 546, 550; 2 Dill. Mun. Corp., $$ 722, 725.

"The use of a highway for the purpose of communicating information by electricity, by means of posts and wires erected along its course, may, in a certain sense, be said to be a use for a purpose similar to that for which highways are established, namely, the increase of communication between persons at different points. But this is a somewhat remote analogy, and the more direct purpose of establishing highways is to enable persons and teams to pass more easily from one place to another. The analogy between a steam railway and Conveyance by ordinary teams is much more direct.

The multiplication of telegraph and telephone posts and wires in thickly. settled places within the past few years makes the question at issue one of great importance. There can be no doubt that in many instances an actual injury is done to the remaining or abutting land along a highway or street by the erection of such posts and wires; and the extent to which this may be carried in the future cannot easily be foreseen. When a telegraph line consisted of only a single row of small posts, with a few wires, the matter was of less importance. But common oberservation shows that now the posts are large and numerous, fitted with cross-beams adapted for layer after layer of almost countless wires; and the establishment of the different kinds of electrical lines involves to some extent a destruction of trees along the highways or streets, an occupation of the ground, a filling of the air, an interference with access to or escape from buildings, an increased difficulty in putting out fires, an obstruction of the view, a presentation of unsightly objects to the eye, and a creation of unpleasant noises in the wind. The actual injury thus done to adjoining property may certainly be quite serious; and if when land is taken or granted for a highway, it is understood that such use may also be made of it, there can be no doubt that in many instances a very substantial increase of compensation would justly be granted to the owner; because in assessing damages when land is taken for a highway, it is not merely a question what the land actually taken is worth or what will be the extent of the injury from the deprivation of its use, but the owner is also entitled to compensation for the incidental injury to his remaining land which is to be estimated with reference to the use for which the land taken from him is to be appropriated, and such damages are to be allowed to him as will fairly compensate him in view of the purposes of the appropriation. Walker v. Old Colony & Newport Railway, 103 Mass. 10, 14; s. c., 4 Am. Rep. 509; Johnson v. Boston, 130 Mass. 452, 454.

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Heretofore the consequential injury to the remaining land of the owner, arising from the possibility of a future use of the highway for telegraph and telephone wires has never, so far as we have been informed, been considered as a proper element of damages. No case is cited or known where it has been

Pierce v. Drew.

held or even contended by counsel that damages should be included for such possible use.

"If the right exists to establish electrical lines with many wires without further compensation, the owner is entitled to be paid at the outset for all such rights which are acquired against him on the assumption that they will be exercised to the full. No one can tell in advance how extensive a use will actually be made; but if it is an incident to laying out a highway that lines of telegraph or telephone may be authorized, the owner of the land certainly has no control over the number of posts and wires that may be used, and the right is not subject to any limit except the discretion of other persons than himself. In fixing his compensation it must therefore be borne in mind that he has no right whatever to limit the use which may be made of the highway for these purposes. The result will follow that when his land is taken for a highway he will be entitled to receive, and the public will be compelled to pay damages, one element of which is uncertain. It may happen that no such use will be made of the highway. It may be the case that the authorities who lay out the way, and the city or town which has to pay the expenses of laying it out and keeping it in repair do not wish to take or pay for the right to have telegraph lines established on it. They may not think such a line in that place necessary or desirable. Nevertheless, if it is incident to laying out a highway that a telegraph line may thereafter be established upon it by the sanction of a future board of municipal officers, this right must of necessity be paid for at the outset unless the owner of the land will have a subsequent claim for additional damages; otherwise his property is taken from him without compensation. "It is going quite too far to hold that in law it must be deemed to have been within the contemplation of the parties, at the time of the laying out of the highway, that it might be used for such new and additional purposes. They are in their nature essentially distinct from the ordinary use of a highway by travellers. It is not desirable to impose this new burden upon the laying out of highways. If the public convenience and necessity require a new highway but do not require a line of telegraph over it, the public authorities ought to be able to take such an easement as will subserve the public requirement without being subjected to the necessity of paying for a right which is not needed nor desired. The use of a highway for telegraphic purposes is not naturally included in the original design nor naturally incidental to its use for travel. Highways can be and are conveniently used without telegraphs or telephones. The latter can be established without the use of the highway. It may be convenient in many instances to use the highway for electrical lines. Whenever this proves to be the case, there is no hardship in requiring those who wish to establish such lines to pay for the privilege such damages, if any, as may be caused to the owners of property by such use. In many instances, no doubt, there would be no damages. But in cases where actual damage is thus caused, there is no good reason why it should not be paid for by those who will derive the benefit. It is more just and reasonable that such payments should be made as for an additional use or servitude, than that it should be included at the outset when it is not known whether such use will be required or not.

Pierce v. Drew.

There is another reason for holding that the right to establish electrical lines is not included in the laying out of a highway. When land is taken for a highway, the payment of damages is to be made by the city or town within which it lies. But a city or town has no legal right to appropriate money for the establishment of a line of telegraph or telephone for the general public use. A direct vote of a town to subscribe for shares in a company, or to contribute money in aid of such establishment, would clearly be illegal and void, as not falling within the classes of objects for which municipal expenditures may be made. If therefore the owner of the land is entitled to be paid for the right to establish lines of telegraph or telephone along the highway in the future, as an incident to the use of the land for the highway, and if the city or town is to pay for the damages caused by the laying out of the highway, including all incidental damages to the remaining land, it follows that the city or town is thus made to contribute money, possibly against its will, for an illegal purpose. By construction of law, it will also be held to have paid money in the past for expenses which it had no actual intention and no legal right to incur. And the electrical companies will be declared entitled to reap the benefits accruing from such payment for their own advantage. The legislature has never intended to require or to allow towns and cities to pay for privileges to be enjoyed by electrical companies which may be organized under the general laws. It is at least doubtful if it has the constitutional right to do so. It would not be "wholesome and reasonable" legislation, within the meaning of the Constitution, to grant to a commercial corporation, established under general laws for purposes of profit, the right to obtain, without payment, a valuable privilege, for which a city or town has been compelled, against its will, to pay.

"An argument has been drawn from the judicial sanction which has been given to the use of streets for drains and sewers, and for gas and water pipes. But there is a palpable distinction between such uses and that for the establishment of a telegraph line. It may be said in a general way that when a highway is laid out, the whole beneficial use of the soil is temporarily taken from the owner and appropriated to the public use; and ordinarily the laying of underground pipes, in such a manner as to cause no injury to the adjoining land, does not deprive the owner of the fee of any use which he could otherwise have made of the soil. Ordinarily therefore he cannot be deemed to suffer any legal injury from the laying of underground pipes. A different question however might by possibility arise, if such pipes interfered with underground operations which the owner might carry on, notwithstanding the existence of the highway. Then again sewers and drains are built more directly by public officers, and usually are of direct benefit to the abutting estates as well as to the streets themselves. The advantage to abutting owners is so apparent that under our statutes they may be assessed for the expenses of construction. Gas-pipes also are likely to be of direct service in furtherance of the purposes for which streets are laid out, aiding public travel and benefitting the abutting lots. There is a general recognition that all these uses are directly subservient to the purposes for which highways are established; and by statute towns are authorized or required to lay water-pipes, erect wateringVOL. XLIX-3

Pierce v. Drew.

troughs and fountains, set out and maintain shade trees, erect guide posts and erect and maintain street lamps. Pub. Sts., chap. 27, §§ 1-4; chap.54, §9. But the erec1 tion of telegraph lines along a highway is of no direct and peculiar benefit to travellers upon the highway, to the highway itself, or to abutting estates; and as has been seen, such lines do or may interfere materially with the beneficial use and enjoyment which the owner of the soil might otherwise have of his estate. “The fact that the statute provides that no permanent easement shall be acquired by a telegraph company is not material. While the line exists, the injury to the owner is continuous; and he is deprived, without his consent, of the rightful use of his property for a period which, though indefinite and liable to be determined, may yet be perpetual, and which he himself is powerless to bring to an end.

"The authorities which hold that using a highway for a steam railroad imposes an additional servitude, for which the owner of the fee is entitled to additional compensation, go farther than is necessary to support the view above taken. The case of Attorney-General v. Metropolitan Railroad, 125 Mass. 515; 8. c., 28 Am. Rep. 264, related only to horse railroads, and leaves it an open question in this State as to steam railways. The case of Callender v. Marsh, 1 Pick. 418-431, as to damage caused by changing the grade of the street, has always been recognized as a hard case, and an intimation was given at the time that the legislature might well interfere by general or special statute for the relief of parties so injured. The doctrine of that case should not be extended. "In Young v. Yarmouth, 9 Gray, 386, the telegraph line was established, so far as appears, by the land owner's consent, and no question involving his rights arose or was considered.

"

'As to elevated railroads, it was held by a majority of the justices of the New York Court of Appeals, that an abutting owner, even if he does not own the fee of any part of the street, has such a property as to be entitled to additional compensation. Story v. New York Elevated Railroad, 90 N. Y. 122; 8. C., 43 Am. Rep. 146. The case would be much stronger if he owned the fee. In the Supreme Court of New York, and in the United States Circuit Court for the Northern District of Illinois, and in the Supreme Court of Illinois, it has been held that the use of a highway for a telegraph line will entitle such owner to additional compensation. Dusenbury v. Mutual Telegraph, 11 Abb. New Cas. 440; Atlantic & Pacific Telegraph v. Chicago, Rock Island & Pacific Railroad, 6 Biss. 158; Board of Trade Telegraph v. Barnett, 107 Ill. 507; s. c., 47 Am. Rep. 453."

The contrary doctrine to the principal case was held by the Special Term of New York Superior Court in Metropolitan Telephone & Telegraph Co. v. Caldwell Lead Co., 67 How. Pr. 365. In that case the fee of the streets was in the city. The court said: The fee thus vested in the city was in trust for, a specified purpose, limited by the purpose for which the property was taken, and the trust upon which it was held; and the use to which the property could be put by the city must be limited by said trust - viz., to be appropriated and kept open as a public street. In People v. Kerr, 27 N. Y. 188, and the cases that have followed that case, it was held that a street railroad authorized by the legislature to be built in a street was valid as a proper regulation as a street use.

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