#### The Frontier Telephone Company, Plaintiff, *v.*Henry C. Hepp, Defendant.

(Supreme Court, Brie Special Term,

February, 1910.)

Electricity — Rights in streets — Interference with telephone lines and remedies of company.

Highways — Obstructions, encroachments and unauthorized use of highway — Liability as between private persons for obstruction of highway — Liability for driving iron spud into street to move building.

Trespass—Actions — Right of action and defenses — Title and possession— Easement — Right of telephone company in streets and subways.

A telephone company, having conduits laid under the surface of the streets of a city for the cables containing its wires, is entitled to recover from a building mover damages caused to its conduits and cables by driving an iron spud or stake into the ground in the operation of a capstan and tackle with which he was moving the building through the street.

*266The ground of the defendant’s liability, in such a case, is not his negligence but his commission of an unlawful trespass.

Nor do the facts that the telephone company accepted payment of a sum of money to indemnify it for changing its overhead wires so as not to interfere with the moving of the building and that it gave a receipt therefor and sent linemen to lift and cut such wires where necessary amount to a waiver of its claim for damages for injury to plaintiff’s underground conduits or cables.

Notice to the linemen who were sent out to cut or lift the overhead wires of the manner in which the defendant was moving his building was not such notice to the plaintiff as imposed upon it the duty of warning the defendant of the danger to its conduits and cables arising from the driving of the spud into the surface of the street.

Where one uses the public streets of a city for his own private purposes and goes beneath the street surface by excavation or otherwise, the duty rests upon him to fully inform himself as to what lies below so that he may avoid injury to the property of the city, or others rightfully there.

Motion for a new trial on the court’s minutes, after a direction of a verdict in favor of the plaintiff.

Frank H. Gibbons and John F. Mueller, for defendant, in support of motion.

Charles F. Blair and Howard S. Jones, for plaintiff, opposed.

Wkeeler, J.

The material facts in this case are undisputed. The plaintiff, a public service corporation operating, a telephone system in the city of Buffalo, under a franchise granted to it by the city of Buffalo, by which it was given the right to string its wires and lay its conduits in the public' streets of the city, had laid and constructed conduits containing telephone cables in Ellicott street in this city. At the point where the damage complained of occurred the conduits were laid about two feet below the surface of the ground, between the curb and the sidewalk, along the westerly side of Ellicott street. The conduit consisted of seven hollow tiles laid in cement, and through these tiles were drawn large cables containing wires used in the company’s service.

*267The defendant was a house mover and desired to move a frame dwelling from a lot on Best street in this city to a lot on Girard street. To move the house, the route was along and over a portion of Ellicott street. The defendant applied to the common council of the city and obtained from it and the other city officials the necessary permit to move the dwelling.

The Frontier Telephone Company, in addition to the underground conduits mentioned, also had overhead wires strung at various points along the route, which it became necessary to cut or lift in order to enable the house to pass.

The defendant informed the telephone company of his desire to move the house over the route in question and to provide for the removal of the overhead wires. The plaintiff sent its inspector, who went over the proposed route with the defendant and observed the overhead wires that would have to be cut or lifted. He made a report to his company, and thereupon the following receipt was signed by the company and given the defendant:

> “ This is to certify that I have received from IT. C. Hepp of 274 Cedar street the sum of seventy five ($75) dollars on deposit to cover expense of changing the wires or other property of this company to permit moving house from 122 Best street to Girard nr. Delavan. Mr. Hepp hereby agrees to pay any expense incurred over the above deposit and to give 24 hours’ notice previous to moving said house.

> “ The Frontier Telephone Company,

> “ By Raymond Bissell, *Treas*

Thereupon the moving of the house began, and linemen were sent by the plaintiff to lift or cut the overhead wires when required.

The house was moved by the use of a capstan and taSkle. In so doing, workmen engaged on the job drove an iron spud or stake into the ground, over the underground conduit, and' so deep into the ground that it penetrated the conduits and so injured two of the cables that they were put out of commission, and it became necessary to remove the cables and replace them with others.

*268This action is brought to recover the necessary cost incurred in replacing the cables in question and is based upon an allegation of an unlawful trespass upon the plaintiff’s property.

The complaint also contained an allegation of negligence on the part of the defendant.

The defendant contends he was ignorant of the location of the conduits in question and had no knowledge that any such underground conduits were laid in this street; that the plaintiff wholly failed to inform him of that fact; and that, if the defendant is liable at all under the circumstances of the case, he can only be held liable on the ground of negligence ; and whether he was, in fact, guilty of negligence was a question of fact to be submitted to and found by the jury under proper instructions by the court.

The court, however, held that, upon the evidence, the case presented was not one of negligence but one of unlawful trespass, and directed a verdict for the plaintiff for the damage sustained. Whereupon defendant’s counsel moves for a new trial on the ground of alleged error by the court in thus disposing of the case.

We think the court was right in the rulings made, and that the law as laid down in the recent decision of the Court of

Appeals in the case of New York Steam Co. v. Foundation Co., 195 N. Y. 43, is controlling in the disposition of this case. In the case cited, the New York Steam Company was a corporation organized for the purpose of furnishing steam for heating and power purposes through pipes laid in the streets of the city of Hew York, and the defendant was engaged in the business of constructing foundations and retaining walls in that city. The Steam Company was acting under a franchise granted by the city. The defendant was acting under a permit, subsequently granted, to construct a vault in front of certain premises in the city, but “in no case to extend beyond the line of the curbstone or sidewalk.” In constructing the vault, and without any negligence on its part, it damaged the pipes of the plaintiff under the street. It was held that both parties were lawfully in the street, but the occupation by the plaintiff was *269prior, permanent, and for a semi-public purpose, while that of the defendant was subsequent, temporary, and for a purely private purpose; that the Steam Company had an indestructible property right in the street, which grant the city could not derogate, and that whoever undertook work not on his own land which would injure the property of another subjected himself to liability for the damages inflicted, and became liable for the damages caused by the interference with the plaintiff's plant already there with the sanction of law. The court further said: “ Even the exercise of due care did not relieve the defendant from the obligation springing out of the fundamental right of every person to enjoy his own property without interference therewith by the use made of the property of another.''

It is, however, contended in this case that the paper given the defendant by the plaintiff, above set forth, whereby the plaintiff acknowledges the receipt of a deposit of seventy-five dollars ($Y5) *“*to cover the expense of changing the wires or other property” of the plaintiff, amounted in effect to a license or consent on the part of the plaintiff to the moving of the house, and that, having so consented, the defendant is only liable for negligence in the performance of the work.

We must assume, as the evidence discloses, that the plaintiff knew that the defendant proposed moving the house over the route designated; and we may also assume that the plaintiff undertook to cut or lift its overhead wires, where necessary, in order to enable the house to pass over the route in question. There was nothing in the receipt or in the evidence of the oral negotiations which preceded the payment of the deposit or the giving of the paper, whereby the plaintiff assented or agreed to do anything more than to cut or lift the overhead wires. That was all that the situation required.

; Hot a word was said about moving or protecting the plaintiff’s underground conduits or cables. At most, the paper is simply a receipt for a deposit, with the possible agreement on the part of the defendant to pay any additional sum if the expense of changing the wires should exceed the deposit. It is absurd to contend that this paper obligated the plaintiff to change or protect its underground conduits or cables. Hothina was said or written in reference to them.

*270The defendant had the undoubted right to move the building under the permit from the public authorities, but that permit gave the defendant no right or authority to invade or injure the property of the plaintiff in so doing. In moving the house, the defendant took the chances of possible injury to the property of others in so doing; and, if he did so damage the property of another, he rendered himself liable under the decision in the case of New York Steam Co. v. Foundation Co., 195 N. Y. 43.

The Court of Appeals commends the able opinion written by the referee on the decision of that case, in which the referee, referring to the right of lateral support of adjacent properties under private ownership, applies the doctrine to the rights of others in streets, and says: *“*The obligation undoubtedly includes the duty of supporting all pipes, mains and other structures lawfully placed thereon. As this duty rests on the individual who owns abutting property, I can see no reason why he should be relieved from a similar obligation, when for his own private ends, but under a permit from the city authorities, he enters upon and excavates the highway itself. To hold that, under such circumstances, he is not bound to make good such damage as he may inflict upon a public service corporation owning property rights in the street under a grant from the city, would involve the further conclusion that he is not liable (in the absence of contract) to the city itself, even though he destroy the highway. New York Steam Co. v. Foundation Co., 123 App. Div. 266.

It is urged by the able counsel for the defendant that the defendant was ignorant that any conduits had been laid in Ellieott street and had no knowledge of their location; and that, inasmuch as the plaintiff knew he contemplated moving the house along that street, it owed him the duty to inform him of the location of its conduits and cables, that he might avoid them; that the plaintiff failed to do this, and this omission to perform a duty owing the defendant contributed to or caused the spiking of the cables. It is contended these facts distinguish this case from the case of New York Steam Co. v. Foundation Co., 195 N. Y. 43. It is, therefore, *271urged that the defendant should have been permitted at least to have gone to the jury on the question as to whether or not this omission to inform defendant of the location of the conduits contributed to their injury and, if so, precluded a recovery.

The question is thus presented whether it was the duty of the plaintiff to inform the defendant of the location of its conduits or cables, or whether the law imposed the duty of ascertaining their location on the defendant. We have been cited no decisions on the question presented, and we believe that its disposition must be largely one of first impressions. We are aware of no precise authority on the subject. We are, however, of the opinion that, when one like the defendant uses the public streets of a city for his own private purposes and goes beneath the street surface by excavation or otherwise, the duty rests upon him to fully inform himself as to what lies below, so that he may avoid injury to the property of the city or others rightfully there. The streets of a modem city are so underlaid with pipes and conduits of various kinds necessary to the comfort and welfare of its citizens that one may be required to almost take judicial notice that in digging he may encounter some such pipe or conduit at any point in a street. We have sewers and water pipes, mains and laterals, steam heating pipes, gas pipes, electric lighting and power lines, telephone and telegraph wires and cables, and all with their necessary branches and connections for service to the abutting owners. When, therefore, one proposes using the public streets for his private purpose, .and proposes driving iron spuds or stakes below the surface, ordinary prudence and care dictate that he should inform himself of what lies beneath, so as to avoid injury to public property, or the property of public service corporations. If he fails to do this, he drives his stakes or makes his excavations at his peril. If the defendant, in driving his iron stakes in moving his house, had driven them into a public sewer, would it have availed him, when called upon to make reparation, to have said he was moving the house by permit from the city officials and had no knowledge the sewer was beneath and, therefore, the city was negligent in not advising *272him of its location ? We think such a plea could not be entertained ; and no less should the plea that the Frontier Telephone 'Company failed to notify the defendant that its conduits and cables were laid between the curb and the'sidewalk. As we see it, it was the duty of the defendant to' have informed himself of that location, and the plaintiff had the right to assume he had performed that duty for his own protection ; and the Telephone Company cannot be charged with any failure to seek out the defendant and tell him where its cables were laid. Maps and plans showing the exact location of the plaintiff’s conduits and cables, as laid in Ellicott street, were on file in the city engineer’s office; and all the information required could have been obtained by consulting those maps. The defendant could have acquired the same information from the maps kept at the plaintiff’s office.' Notwithstanding the defendant proceeded with his operations ivithout any inquiry whatever, when it seems to the court, if he had reflected, he must have known that, somewhere in that street, telephone conduits existed. The plaintiff did not know the defendant proposed driving iron stakes over its conduits. It was not at all necessary to have done so in moving.

It is further urged that the linemen sent out by the plaintiff to cut or lift the overhead wires saw the defendant’s men driving stakes about where the break occurred; and it is argued that, therefore, the plaintiff had notice of what the defendant was doing, and should have spoken. Notice 'to these linemen was not notice to the company. The linemen were sent simply to cut or lift' the overhead wires. That was the extent of the duty they had to perform. There is no suggestion in the evidence' that these men had anything to do with the underground conduits or cables, or even knew where they were laid. The fact that they may have seen men driving spuds into the' ground between the curb and sidewalk cannot, in our opinion', be deemed sufficient evidence of notice to the plaintiff of what the defendant was doing.

We, theref ore, conclude that no error was committed by the trial court in directing a verdict for the plaintiff; and defendant’s motion for a new trial is, therefore, denied.

■ Ordered 'acordingly. -