EJECTMENT AGAINST A PUBLIC SERVICE CORPORATION.

Court of Appeals for Sandusky County.

#### Ferdinand Saner v. The Lake Shore Electric Railway Company.

Decided, October 6, 1916.

*Ejectment*— Removal *Ordered of High Tension Electric Wires*— Main*tained Over a Lot Not Adjacent to the Company’s Trades.*

An owner of real estate not adjoining an electric interurban railroad - may maintain an action of ejectment to require tbe removal of high tension electric wires which the company has erected over his land without his consent and uses for the transmission of power in the operation of its cars.

*D. B. Love,*for plaintiff in error.

*O’Farrell & Rimelspach,*contra.

Error to the court of common pleas.

Richards, J.

This ease was in this court once before and on that occasion the judgment in favor of the railroad company was reversed on April 22, 1915, and the ease remanded to the court of common pleas. After the ease was remanded to that court the plaintiff filed an amended petition abandoning the claim for damages and ashing only that the defendant be ejected from the premises.

The plaintiff is the owner of a portion of out-lot No. 156 in the city of Fremont, on which lot he had erected a foundation preparatory to the construction of a dwelling-house. The defendant has constructed across his lot and over the foundation three high tension wires, each carrying approximately eighteen thousand volts of electricity used in the operation of its electric railroad. After the plaintiff rested his case, the court directed a verdict for the defendant on the ground that the plaintiff had a remedy by compelling the defendant to appropriate an easement over the lot for the construction and maintenance of its *256wires, and the sole question in this ease is whether under these circumstances the plaintiff has the right of ejectment.

It is said that the owner of the life estate had granted the right to the railroad company to erect and maintain these wires; but however that may be, on the expiration of the life estate the right granted no longer existed.

We have had some difficulty in this ease over the right of a person to maintain ejectment against a public service corporation engaged in the transportation of passengers and freight, and we are aware of the decisions which prohibit the sale of a portion of a railroad and likewise prohibit ejectment of a section of a railroad from a given piece of land, and holding that the remedy is to cause, in the one ease, a sale of the whole road, and that the remedy in the other is damages. But in the case now under consideration the claimed right of the company is simply for the maintenance of these three high tension wires, and we think the rule thus announced ought not to be extended or made applicable to this kind of a ease, especially in view of the fact that these wires make a circuit of a considerable distance through the northerly portion of the city along a route away from the right-of-way of the defendant company. It is clearly no objection to the right to maintain ejectment that no poles have been or will be actually erected by the defendant company upon the land of the plaintiff, for his land extends to the sky above and his right to maintain ejectment is the same as if poles had actually been constructed and were being maintained upon his land.

Holding that among the rights of the plaintiff is the right to maintain ejectment, the judgment will be reversed and the case remanded to the court of common pleas for further proceedings. AVe may suggest that if an order of ejectment should be granted in this case, its execution should be suspended for such reasonable length of time as will allow the defendant company to readjust or reconstruct its lines of wires.

Chittenden, J., and Kinkade, J., concur.