(Clinton Co., O., Common Pleas,

July, 1900.)

#### LOUISE C. DENVER v. UNITED STATES TELEPHONE CO. ET AL.

*Telegraph and telephone lines*— Additional burden—

(l.) The construction and maintenance of a telegraph or telephone line upon a highway is a new and additional burden upon the fee, to which, when the highway was established, it was not contemplated it would be subjected, and for which the owner is entitled to additions,! compensation.

*Same*— Removal—Equity—

(2.) When a telegraph or telephone company proceeds to construct its line and erect poles upon the highway during the pendency of an action to enjoin them from so doing against the obj ection ot the owner and without first acquiring the right to do so by contract with the owner or otherwise, a court of equity will order the same removed.

*Injunction the proper remedy*— >Action *at*law—

(,3.) Injunction is the proper remedy for the abutting owner on a highway or against a telegraph or telephone company, which attempt to construct its line on the highway without obtaining ‘his consent or otherwise acquiring the right to do so, and the abutting owner’s right thereto is not defeated by a right of action to sue for the amount claimed as damages.

Brown, J.

This case comes before the court for hearing upon the petition, the amended petition, the second amended petition and the answer. The petition avers that the defendant is a corporation duly organized, having no fixed place of business in Clinton county, Ohio, and that the defendant, John A. McDowell, is its agent and superintendent of its workmen; that the defendant company is engaged in the construction of a telephone line from Washington C. H., Ohio, to Wilmington in Clinton county, Ohio, which telephone line passes through and upon the real estate belonging to the plaintiff.

The amended petition sets out a full and complete description of the plaintiff’s real estate, and in the original petition avers that the defendant has entered upon the said lands with its workmen without the consent of plaintiff and without first having obtained the right so to do by proper condemnation proceedings and are now proceeding to dig up the earth, plant its poles and string its wires and to appropriate to itself a right of way across said plaintiff’s said lands without plaintiff’s consent and without paying any compensation therefor; that the defendants in disregard of the rights of plaintiff have violently entered upon said lands upon Sunday, have taken forcible possession and are now proceeding to appropriate to its own use a right of way across the same aa above stated, without paying any compensation whatever therefor, and against the will and protests of the plaintiff and unless restrained forthwith by the orders of this court, will continue so to do, and will appropriate said right of way as aforesaid; that the defendant, John A. McDowell, is the agent in charge of the workmen. And, therefore, the plaintiff asks for a temporary injunction enjoining them from entering upon the premises and digging up the earth and planting its poles and stretching its wires, as it is now attempting to do, and that upon final hearing the injunction may be made perpetual.

Upon this petition being filed, on Sunday, May 6, in chambers, Judge Savage allowed ft temporary restraining order. On May 8, the plaintiff filed an amendment to her petition alleging that the defendants, for the express purpose of evading the judgment and avoiding the process of the court and for the purpose of obtaining and holding a right of way for said telephone on and over plaintiff’s premises, without paying compensation therefor,, or paying damages to the premises thereby occasioned, selected Sunday, May *6, for*the work, commencing about the hour of three o’clock in the morning, intending to complete said work over plaintiff’s premises before the end of that day, with the pretense and claim that the plaintiff would be deprived of all legal redress because said day was Sunday. The plaintiff avers that the defendants have forcibly and violently entered upon the premises and taken possession of the same on said day and are proceeding to appropriate plaintiff’s property by force and violence to their own use, alleging and claiming that the plaintiff is powerless to prevent the same by any process of court because the work was being done on Sunday.

She further avers that in constructing said line over said premises, defendants are cutting, mutilating and destroying plaintiff’s shade and ornamental trees, located on and near said right of way sought to be appropriated; that the defendant, the said company, has taken no steps or measures to have compensation and damages for said right of way estimated and assessed in pursuance of law, but is seeking by force to obtain same without paying compensation, and unless the said company and its agents are restrained, the company will accomplish its purpose, and prays as in the original Petition.

*667On May 14, the defendant filed an answer to the petition as amended, admitting that it is a corporation under the laws of the state of Ohio, that McDowell is its superintendent of workmen in Clinton county; that it is engaged in the construction 'of a telephone line from Washington C. H., Ohio, to Wilmington, Ohio, but denies that it is constructing said telephone line upon or through the premises of plaintiff, but on the contrary it alleges that such telephone line is being constructed along and upon the north side of a certain public highway leading from Washington C. H., Ohio, to Wilmington in Clinton county, Ohio, known as the Washington and Wilmington Free Turnpike, and denies each and every other allegation in petition contained.

Upon the hearing, the plaintiff established by the weight of the evidence that she was the owner of the premises described in the petition and that her line extended to the middle of the turnpike, and that the defendant was guilty of the acts charged in the petition. The undisputed testimony of M. R. Denver, the son of the plaintiff, is that he was the- agent of the plaintiff in all matters relating to the farm and particularly in this matter, that negotiations had been carried on between the parties in regard to the compensation and damages, that the defendant company had offered one dollar a pole, there being in all about fifty poles, and that he had asked for one hundred dollars, and that being unable to agree upon the amount, negotiations -ceased and that shortly after'the acts were done as alleged in the petition.

The defendant McDowell testified that as superintendent of the workmen constructing the line, he had thought that the injunction issued on Sunday was not valid and therefore had returned with his workmen, as he says on his own responsibility, early Tuesday morning, May 8 and dug holes for -the poles about one hundred feet apart, placed poles in every other hole, cut the limbs of some of the trees and strung the wires virtually as set out in the amendment to the petition.

The question as to the issuing of the temporary restraining order on Sunday was passed upon by Judge Savage and sustained, and of course it is not necessary to consider this nor was that considered upon the hearing.

Article 1 of the bill of rights in the constitution of 1851, sec. 19, provides that private property shall ever be held inviolate but subservient to the public welfare and when' taken in the public exigency, compensation shall be made the owner in money without deduction for benefits and such compensation shall be assessed by a jury.

Section 5, art. 13, provides that no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made.in money to the owner irrespective of any benefit, which compensation shall be ascertained by a jury of twelve men.

It has been distinctly held in *Crawford*v. *Village of Delaware,*7 Ohio St., 469, that the easement of the abutting land owner in the highway is as much property as the land itself. This principal was clearly stated in *Lessee of Irvin*v. *Smith,*18 Ohio St., 229; *Street Ry.*v. *Cumminsville,*14 Ohio St., 523, and in *Bowles*v. *State,*38 Ohio St., 41.

In this case the plaintiff is the owner of the fee to the middle of the highway and this fee is subject to the public rights in said highway for 'the public convenience.

Sections 3454 to 3470, R. S., inclusive, provide that magnetic telegraph companies may construct telegraph lines upon any public road in this state subject to certain conditions.

Section 3456 provides that such company may appropriate of the lands so much as may be deemed necessary for the erection and maintenance of its line.

Section 3457 provides that no such company shall, without the consent of the owner in writing, erect any pole or other fixtures so near to any edifice as to occasion injury thereto or risk of injury, in case such pole or fixture be overthrown, nor can it injure any fruit or ornamental trees.

Section 3471 makes the provisions of this chapter as to magnetic telegraph companies apply to telephone companies.

Section 5263 and subsequent sections of the Revised Statutes of the United States, Title LXV, provide that any telegraph company-may construct, maintain and operate its line of telegraph through and over any portion of the public highway or domain of the United States, but such- lines shall be so constructed and maintained as not to obstruct or interfere with the ordinary travel on such roads. It further provides for the written acceptance of the provisions of this chapter to be filed with the postmaster general. These sections are also made applicable to telephone companies.

In commenting upon these sections in *Daily*v. *State,*51 Ohio St., 348, Judge Spear, on page 356, says: “But the statute nowhere undertakes to deal with- the private right of ownership in the highways, and the question arises whether it was the legislative purpose to give rights to telephone companies inconsistent with the rights of the owners of adjoining lands in the highways. Whatever may be the rule in other states, we have supposed that the question of the right in the highway of a *668land owner, whose title extends to the center of the road, is not an open one in Ohio. The question has been the subject of adjudication in a score of cases decided by this court.” And cites *Nash*v. *Atherton, 9*Ohio St., 167; *State*v. *Medbury,*7 Ohio St., 459; *Cincinnati*& S. *G. Ave. St. Ry. Co.*v. *Cumminsville,*14 Ohio St., 523; *Hatch*v. *Railroad Co.,*18 Ohio St., 123, and others, and quotes from *Lawrence Railroad*v. *Williams,*35 Ohio St., 168, decision by Chief Justice Gilmore: “As between the public and the owner of land upon which a common highway is established, n. is settled that the public has a right to improve and use the public highway in the manner and for the purposes contemplated at the time it was established.”

On page 173, Judge Gilmore says: “The right to so divert the use and impose additional burdens on the land could only be acquired by a corporation by agreement with the owner or by appropriating and making compensation therefor in the mode prescribed by law.”

Judge Spear further says in *Daily*v. *State, supra.*“That the rule of law rests upon the clear ground that the appropriation of the public highways for the purpose of telegraph lines was a new use. The highways were originally dedicated for the purpose of public travel and not for the purpose of telegraph lines, hence the new use imposed an additional burden.”

The statutes of Ohio grant to telegraph and telephone companies subordinate rights which is apparent from the provision that lines are to be constructed so as not to interfere with the public use of the highway. Judge Spear says further: “The question of legislative power therefore to authorize a telegraph company to take the interest of the adjoining land owner in the highway without compensation, need not be considered.

“It follows that before the telegraph company could possess a right in such measure as to interfere with the right of the land owner in the highway, it would be required to acquire that right in some one of the ways known to the law.

“The mere acceptance of the United States statutes by a telegraph or telephone company as required by the United States statutes does not thereby acquire any right as against the individual property right of the land owner.”

In *Pensacola Tel. Co.*v. *W. U. T. Co.,*96 U. S., 1, Chief Justice Waite in rendering the decision, in commenting upon this statute with regard to the rights of two telegraph companies under the United States statutes, was so careful that that decision should not give any unwarranted authority, said: “It gives no foreign corporation the right to enter upon private property without the consent of the owner and that whenever the consent of the owner is obtained, no state’s legislation should prevent the occupation of roads for telegraph purposes,” He further says that if private property is acquired, it must so far as the present legislation is concerned be obtained by private arrangement with the owner, no compulsory proceedings are authorized, only natural privileges are granted.

In *Daily*v. *State supra,*it was held that the owner of the adjoining land was the owner of the trees along the highway and had the right to their full enjoyment subject only to the convenience of the public welfare.

The case of *Smith*v. *Telegraph Co.,*1 Circ. Dec., 475, decided by the judges in the seventh ' circuit, Judge Woodbury rendering the decision, is the most fully and ably considered of any case upon this subject and is in almost every particular similar to the case in dispute. Judge Woodbury has carefully considered all the cases upon this subject in nearly every state in the Union and in the supreme court of the United States, and comments upon the different phases of the matter, and the court holds that the construction and maintenance of a telegraph or telephone line upon a highway is a new and additional burden up"on the fee, to which when the highway was established it was not contemplated it would be subjected and for which the -owner is entitled to additional compensation. When such company pro- * ceed to construct such line upon the highway during the pendency of an action to enjoin them from so doing against the objection of the owner and without first acquiring the right so to do by contract with the owner or otherwise, a court of equity will order the same removed.

I will not go into the details of this decision which is convenient to all the members of the bar, but to decide otherwise than this court It would be like overruling the circuit court.

It is contended that injunction is not the proper remedy, that the plaintiff had an adequate remedy in law in suing for the one hundred dollars which she had agreed to take, but this position is not sustained by the decisions. This was the private property of the plaintiff. She had a right under the constitution and laws of the state to compensation and for damages, and when her rights were interfered with, her proper remedy was by injunction, as clearly held in the above cited cases.

In *Atlantic & G. W. Ry. Co.*v. *Robbins,*35 Ohio St., 531, it was held that the owner of land which had been unlawfully taken and appropriated by a corporation to its use, could *669not maintain an action for the value of the land so taken and also damages accruing by-reason of such taking, if the circumstances were such that he may recover the land itself.

*Mills & Clevenger,*for plaintiff.

*Thorpe & Miller,*for defendants.

A decree for the plaintiff will therefore be entered, but sixty days time will be allowed to the company as reasonable opportunity to acquire this right to maintan a line upon 'the-property of the plaintiff; if not acquired within that time, the company will remove its line.