or greater, than that caused to others by the erection of similar poles.82 § 312a. Telegraph and telephone Not additional burden South Dakota. In a case in South Dakota this question arose on an appeal from an order dissolving a temporary injunction. The action of the lower court was affirmed and it was declared that the use of the streets of a city for the erection of a telephone system did not constitute an additional servitude. The conclusion in this case is founded upon the principles stated in the Massachusetts 83 and Missouri cases,84 which are referred to at length in the opinion.85 82 The court in this case referred to and quoted from opinion in Julia Biulding Assn. v. Bell Teleph. Co., 88 Mo. 269, upon the question as to poles and wires being proper uses of the streets, and as to the effect of the telephone in relieving the streets of some portion of the throng which would otherwise pass over it, and reached the conclusion that the use of a street "in a reasonable manner, and to a reasonable extent, for this purpose, is just and proper, and is within the uses to which the street may lawfully be put, when such use is sanctioned by the public through its duly authorized municipal agents." The court in this case, however, held that the fee to the streets was not in the abutting owners. 83 Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 571, 49 Am. Rep. 7; see § 308, herein. 84 Julia Building Assn. v. Bell, 88 Mo. 258, 57 Am. Rep. 398, 1 Am. Elec. Cas. 801; see § 311, herein. 85 Kirby v. Citizens Telephone Co., 17 S. D. 362, 97 N. W. 3, 8 Am. Elec. Cas. 199. The court said: "Upon the main question that is presented for our determina tion the authorities are not in harmony, and any attempt to reconcile them would be useless. One line of authorities holds that the construction of telephone systems along the streets of cities imposes no additional servitude upon the abutting property owners, and that said owners are not entitled to compensation for any damages they may sus tain by reason of the construction of such system. The other line of authorities take the view that such a system creates or imposes upon the abutting property owners an additional servitude, for which they are entitled to compensation for such damages as they may sustain. After a careful examination of these authorities we have arrived at the conclusion that the decisions of the courts taking the former view are not only sustained by the greater weight of authority, but by the bettér reasoning, and should be followed. The streets of a city or incorporated town are, in contemplation of law, dedicated, appropriated or condemned for all proper street uses; and when a street is used for any proper street purpose by permission of the city authorities, such use does not constitute an ad § 313. Telephone and telegraph - Not additional burdenPennsylvania.-York Telephone Company v. Keesey 86 was the case of an action brought by the telephone company for an injunction to restrain the defendant from interference with the erection or maintenance of a telephone pole in front of his property. The injunction was granted and the court considered in its opinion the question as to the use of the highways and streets for such purposes, referring to the case of Lockhart v. Craig Street Railway Co.,87 which held that poles and wires for a street railway could be erected in streets without compensation, and saying that it could see no distinction between telephone poles and wires and those of a trolley, concluding with the opinion that poles and wires of a telephone company were not an additional burden. § 313a. Telegraph and telephone-Not additional burdenWest Virginia. In a case in West Virginia the question is considered whether the erection of a telephone line along a public thoroughfare is such a taking, within the meaning of the Constitution of that State, as will authorize an abutting owner to maintain an injunction until just compensation has ditional servitude, though such use may not have been known when the streets were dedicated, appropriated, or condemned for street purposes, and the abutting fee owner is not entitled to compensation for any damages he may sustain by reason of such use. The streets of a city are now used for many purposes unknown in former times. A century ago or less there was practically no use of the streets for sewers, laying of water and gas pipes and operating street railways, but with the advance of civilization and the improved conditions of society these uses have become a necessity, and recognized by the courts, and quite generally held as not adding any new servitude to the abutting fee owner for which he is entitled to com pensation. The telephone is but a 865 Penn. Dist. Co. Rep. 366, 6 Am. Elec. Cas. 107. 8T 139 Penn. St. 419, 3 Am. Elec. Cas. 314, 21 Atl. 26. been, or secured to be, paid. The court declared that the decisions of other States were very conflicting and unsatisfactory on this question and that many of the decisions have little or no application to the law of West Virginia, as they are mere judicial fictions, invented for the purpose of securing to an abutting lot owner damages to his property caused by street improvement or use for other public utilities than travel, and that a resort to such fictions was not necessary in that State, for the reason that the Constitution secures to the abutting lot owner such damages as may be sustained by him because of public improvements of any kind; not by injunction, however, but by an action at law unless the damages are so great as to amount to a virtual taking of his property. In this case it was decided that such use of the highway did not constitute a burden on the fee, but that it was a burden alone. upon the permanent easement of the public in the street. The court further said that it might, however, be a damage to a greater or less extent to the abutting owner, for which he had his suit at law unless such damage was equivalent to an actual taking of the lot.88 "The 88 Maxwell V. Central Dist. & Printing Co., 51 W. Va. 121, 41 S. E. 125, 8 Am. Elec. Cas. 206. It was said in this case: telephone company takes nothing by its grant from the town except a simple right of way so long as the council has an easement in the land to use it as a street. While it may obstruct to some extent the public easement out of which it is carved, it in no sense takes any thing from the owner of the fee that has not already been taken from him when the land was dedicated to public use. Telephonic communication, though maintained by private capital, is a great and rapidly increasing public utility. It is an immense saver of time and money, and often life. It also relieves the public thoroughfares of much of their burden of travel, far more than the space occupied compares with the residue of the public highways. As its facilities increase, its public utility, necessity and cheapness of operation will also increase, until its benefits are appreciated and enjoyed by all. It will prove a great aid in the administration of justice, the prevention of crime, and the spread of civilization, as it will bring all mankind into easy speaking distance of each other. Telephone poles are not things of beauty, yet their utility is so great that their ugliness must be endured until human invention has discovered some more tasteful substitute for them. The public can well afford to surrender a reasonable portion of the public easement in its highways to a public utility of such vastly increasing importance. As the cisions which we have given, one rule may be deduced from which we do not believe there can be any dissent. The abutting owner, whether upon the streets of a city or upon a rural highway, is entitled to the easements of access, light and air, and this is true whether the fee of the street be in the abutting owner or in the municipality or State, and of these easements he cannot be deprived or materially obstructed in his enjoyment thereof, without compensation. § 315. Telegraph and telephone - Fee to streets in munici pality — Rule. And again, we think it may be safely stated that if the fee to the streets is vested in the municipality, there can be no recovery for the erection of telegraph or telephone poles thereon, except the abutting owner be deprived of his easements of access, light and air, or materially obstructed in his enjoyment of the same. § 316. Telegraph and telephone-Fee to streets in abutting owner - Summary decisions. The question upon which the courts are not in harmony is where the fee to the streets is in the abutting owner. Though there are numerous cases in different States, extending over a period of many years, in which this question has been considered, yet there is still the same hopeless conflict among the decisions, and it cannot at the present time be said that, in such cases, there is a positive weight of authority among the courts which supports a rule either for or against the proposition that a telegraph or telephone line is an additional burden, entitling the abutting owner to compensation. In determining the weight, however, to be given to the decisions in those States which hold that such use of the streets is not an additional burden, the following facts should be considered: In the Louisiana 89 and Montana 90 cases it was held that the abutting owner has no owner of the fee in such highways loses nothing thereby, he has no grounds of complaint. It puts no additional burden on the fee," per Dent, P. 80 Irwin V. Great Southern Teleph. Co., 37 La. Ann. 63, 1 Am. 90 Hershfield v. Rocky Mountain Bell Teleph. Co., 12 Mont. 102, 4 Am. Elec. Cas. 73, 29 Pac. 883. fee in the streets, while in the Kansas,91 Massachusetts,92 Michigan,93 Minnesota,94 and Missouri,95 cases there were dissenting opinions. In the West Virginia case it was declared that some of the decisions in other States were judicial fictions invented to secure an abutting lot owner damages to his property from street improvements and that a resort to such fictions was unnecessary in that State, as an abutting owner was secured in this respect by the State Constitution, by which he was given an action at law for damages, and the court said further that there might be a damage in such a case to an abutting owner to a greater or less extent for which he had his suit at law.96 § 317. Nature of easement acquired in streets. The question underlying this point is what is the nature and extent of the easement acquired by the dedication of a street. In a rural highway the rights of the public are not so extensive and broad as in city streets. In the former the abutting owner retains many rights and privileges which he does not possess in the latter. In the case of a rural highway the public obtains merely the right of passage over the same, but in city streets the public obtains in addition to the right of passage the right to use the street for necessary public purposes consistent with its dedication as a street, provided it does not interfere with the right of passage. In many cases what might be a rural highway at one time might, from the increase of population in that vicinity, become a street of a populous city and subject to the uses to which city streets may be devoted. So the rule naturally follows that when a highway is dedicated to public use it is dedicated subject to the necessities of future times, as well as the present, and is subject to the growth and expan 91 McCann V. Johnson County Teleph. Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171. 92 Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 571. 93 People v. Eaton, 100 Mich. 208, 5 Am. Elec. Cas. 87, 59 N. W. 145. 94 Cater v. Northwestern Teleph. Exch. Co., 60 Minn. 539, 63 N. W. 111, 5 Am. Elec. Cas. 111. 95 Julia Building Assn. v. Bell Teleph. Co., 88 Mo. 258, 1 Am. Elec. Cas. 801. 96 Maxwell |