#### Malone, Respondent, vs. Waukesha Electric Light Company, imp., Appellant.

*January 14*

February *2, 1904.*

*Xiooation of electric light yoles: Abutting owners: Costs: Appeal: Affirmance and reversal.*

1. Under sec. 925 — 88, Stats. 1898, the time and manner of using the streets of cities, for the purpose of placing electric light poles therein, is to he determined hy the hoard of public works, subject to review hy the common council. The defendant, operating under an ordinance or franchise passed hy the common council, attempted to place an electric light pole in front of plaintiff’s premises, without his permission, and in advance of any action hy the public authorities except an order allowing the defendant to set *a*pole. and string its wires on the sidé of the street on which plaintiff lived. *Held,*that until the city authorities had exercised the power given them, and *486authorized a pole to he put at the point where defendant,, against plaintiffs objection, did put it, plaintiff is’ entitled to an injunction restraining such action.

2. In an equity case costs are discretionary, and no abuse of discretion appearing, there can be no reversal of the judgment on that ground.

[3. Whether the placing of poles in a street by an electric lighting, corporation for the purpose of placing electric light and heat wires thereon is an additional burden to the fee, so as to require condemnation proceedings, as against the abutting owners, not determined.]

Appeal from a judgment of the circuit court for Wau-kesha county: Jakes J. Dice, Circuit Judge.

*Affirmed.*

This is an action in equity to enjoin the appellant company from placing an electric light pole in the street in front of the plaintiff’s premises‘in the city of Waukesha, and from cutting or trimming the branches of the plaintiff’s-shade trees in the street. The plaintiff owns and occupies as a homestead a lot in the city of Waukesha with a frontage-of 160 feet on Barstow stfeet, and with a number of large shade trees in front of said lot. The defendant is a corporation engaged in furnishing electric light, heat, and power for public and private purposes in said city. March 13, 1902,. the appellant entered into a contract with the city of Wau-kesha to light the city with electric light for five years, which contract specified the number and kind of lights to be used, the amount to be paid therefor, and contained provisions requiring the appellant to erect and maintain the necessary plant, poles, wires, etc. Just prior to the making of this -contract the city council of the city of Waukesha passed an ordinance purporting to grant to the appellant for twenty years the right to enter upon the streets, alleys, bridges, etc.,, of the city, and operate and maintain on, over, and under the same poles, wires and the necessary apparatus for supplying electricity for light, heat, and power, subject to the general provisions of law in force, and also subject to the direction and supervision of the board of public works of the city *487in tbe setting of poles and tbe placing of wires. Under tbis ordinance tbe board of public works made a written order June 4, 1902, authorizing tbe appellant to set poles, and place wires; tbereon, in certain streets of tbe city, as provided by said franchise, among which streets was a part of Earstow street, including that part on which tbe plaintiff’s lot fronts, but tbe order did not specifically designate any particular places in tbe street where tbe poles should be put. In. tbe early part of June, 1902, tbe appellant commenced to build tbe Barstow street line, and started to dig a bole for a pole on tbe plaintiff’s side of tbe street at a point in front of tbe plaintiff’s premises. To tbis tbe plaintiff objected, and after some talk between tbe plaintiff and tbe defendant’s manager, it was agreed that the plaintiff’s wife should settle tbe matter by agreement with tbe manager. Tbe manager testifies that be agreed with Mrs. Malone that a pole should be permanently set at a certain point near an elm tree in front of tbe plaintiff’s premises.' Mrs. Malone, however, testifies that she made no agreement that a pole might be permanently set anywhere, but that tbe manager told her that a pole must be set somewhere upon that day; that there could be no delay; that be would put up a twenty-foot pole at tbe place near tbe elm tree, and would remove it whenever required — and that she consented to tbe temporary placing of tbe pole on those conditions. As matter of fact, it appears that a pole about thirty feet in height was put in tbe place thus selected, apd that it remained there without wires until August 18, 1902, when defendant’s workmen appeared and began to put arms on tbe pole, and to prepare it for the stringing of wires tbere-on. Thereupon tbe plaintiff objected, and ordered tbe pole removed, and commenced to cut it down. On tbe same day tbe board of public works made a written order allowing tbe appellant to set a pole and string wires on tbe east side of Earstow street between Main street and tbe alley (tbis includes tbe plaintiff’s frontage), but specifying no particular *488location for tb© pole. Plaintiff immediately commenced tbis action against tbe electric light company alone to enjoin it from putting tbe pole near tbe elm tree, and also to prevent tbe trimming of any of tbe branches of tbe plaintiff’s trees, and obtained a temporary injunctional order to that effect. Tbe defendant appeared in tbe action, and, in addition to a defense upon tbe merits, pleaded by way of abatement that tbe city should be joined as a necessary party defendant. In connection with tbe temporary injunctional order, tbe circuit court further ordered that tbe matter be referred to Court Commissioner Merton to recommend a place where tbe pole could be put pending tbe litigation, without injury to tbe interests of either party; and tbe commissioner reported, recommending a place near tbe .point originally selected by tbe company. Tbis recommendation was practically consented to by both parties, and tbe pole was put in that place, and has remained there since, with wires strung thereon. Tbe case was tried by tbe court, and tbe trial judge, before making findings decided that tbe city should be joined as a defendant, so that any judgment rendered might be effective and binding on all parties concerned, and an order was made bringing in tbe city as an additional defendant. An amended complaint was served, and tbe city answered thereto; and tbe case came again to bearing and tb© evidence taken upon tbe first bearing was stipulated bodily into tbe case, with some slight additional testimony. Tbe court, after finding tbe plaintiff’s ownership of tbe lot, and tbe defendant’s business and franchise, proceeded to find that tbe plaintiff’s shade trees were of great value, and added greatly to tbe use and enjoyment of tb© plaintiff’s homestead, and that any cutting or trimming thereof would cause irreparable damage to tbe plaintiff, for which be bad no adequate remedy at law, and further:

“That on tbe 18th day of August, A. D. 1902, at tbe city of Waukesha, in tbe state of Wisconsin) the said defendant *489
      *Wauleesha Electric Light Company,*having been previously warned by'the plaintiff not to interfere with his possession and the enjoyment of his premises, and the trees thereon, •by its agents, servants, and employees, claiming to act by and under the direction of the city-of Waukesha, and in accordance with the franchise to it granted by said city, and under the contract made with said defendant city, willfully, maliciously, and wantonly, and with intent to injure the plaintiff in the possession, and enjoyment of his property, went upon the premises of the plaintiff with force and arms, and against the consent of the plaintiff, and in derogation of his rights, started to place electric wires, to be charged with electricity, on a certain pole, of the probable height of thirty feet, placing cross-arms on said pole, among the limbs and branches of one of said elm trees; the said pole having been placed there fraudulently on or about the month of June, A. D. 1902, by said defendant light company, which said pole was placed in the ground a few feet from the base of «aid elm tree, so that the top thereof, and where the cross-■arms are, and the wires were to be placed, were within the tree, requiring, and said defendant contemplated, the cutting of the limbs and branches thereof; said pole being located on the premises of the plaintiff, between the sidewalk and curb line; and the said defendant light company did then und there, without warrant or authority of law, threaten and attempt to place cross-arms on said pole for the purpose of stringing thereon live electric wires for the transmission of power for public as well as private purposes, in close proximity to the residence of the plaintiff, and did then and there threaten to commit personal violence on the plaintiff when endeavoring to protect his trees and property from the encroachments of said defendants; and that the defendants threatened that, unless restrained by injunction, they would continue to interfere with the plaintiff in the enjoyment of said premises, and will cut, trim, injure, and destroy the .said tree, and other trees, and will greatly injure the homestead of the plaintiff, and that he -has no adequate remedy at law in the premises, and that to proceed in the manner they intend and threaten would be of irreparable damage to the plaintiff. That all the allegations of plaintiff’s complaint, except as modified by these findings, are true, and that the *490placing of the said pole and the wires among the branches of the plaintiffs trees, and the cutting, mutilation, or trimming of the said tree or trees, was wholly unnecessary in order' that the said defendant carry out its contract with the defendant city under the franchise hereinabove referred to. That said wires could be placed and strung without touching the trees of the plaintiff (10) That the said defendants have not acquired the right to take or appropriate the premises and trees of the plaintiff by condemnation proceedings under the laws of the state of Wisconsin, nor has an attempt so to do been made. (11) That on or about the 4th day of June, A. D. 1902, the board of public works of said defendant city, by order, directed and authorized the placing of poles by the said defendant light company on Barstow street, without designating the point of location, nor the side of the street on which the same were to be placed; but, after the trouble had arisen between the plaintiff and the said defendants, the defendant light company was ordered to place a pole on the east side of Barstow street, and in fact the said pole has been there since June, and in the place so obnoxious to the plaintiff, herein complained of.”

As conclusions of law, the court found that the plaintiff was entitled to have the temporary in junctional order made permanent, but that the appellant should have the right to place a pole at a point in front of the plaintiff’s premises, forty-seven feet south from the southeast corner of Barstow and Main streets. Judgment was rendered in accordance with these findings against both defendants, but it was adr judged that the plaintiff recover costs of the appellant alone and from this judgment the appeal is taken.

*T.*W. *Haight,*for the appellant.

*D. J. Hemlock,*for the respondent.

Winslow, J.

There is a very important question which might well have been litigated and decided in this case, and that is the question whether the placing of poles in the street by an electric lighting corporation for the purpose of placing electric light and heat wires thereon is an additional burden *491upon tbe fee, so as to require condemnation proceedings, as. against tbe adjoining owners. Tbe question does not seem to bare been seriously considered in tbe court below, and it bas not been argued in tbis court; and, in view of its great, importance, and tbe fact tbat tbis case may be properly de--’ cided without reference to it, we shall not take it up, but wait until it may be fully presented on argument and authority.

Conceding, for tbe purposes of tbe case, tbat tbe franchise-granted b;/ tbe city council gave to tbe electric light company tbe right to place its poles in tbe streets without condemnation, it did not give tbe right to place those poles anywhere tbat tbe company might choose, against tbe consent of tbe lot owner. Under tbe terms of tbe law governing tbis subject in cities of tbe class to which Waukesha belongs, tbe timo *and manner*of using tbe streets for placing electric light poles therein *shall*be determined by tbe board of public-works, subject to review by the common council. Sec. 925 — 88, Stats. 1898. Such, also, are tbe terms of tbe ordinance or franchise passed by tbe common council. There-can be no doubt tbat, until tbe board of public works bas designated the particular places-where tbe poles are to be-placed, the electric light company bas no power, against the-objection of tbe owner, to place a pole in front of a man’s property. Until the city authorities have exercised tbe power given them, tbe property owner’s right must be paramount. It appears by tbe findings in tbe present case, upon sufficient evidence, tbat neither tbe board of public works nór tbe city council ever authorized a pole to be put at tbe point where-tbe company bad put it when tbis action was commenced, nor did they ever authorize the trimming of trees for tbe purpose. Until such authorization had been made, the rights of tbe plaintiff must be considered to be absolute, and it follows from tbis tbat tbe judgment must be affirmed.

Costs were adjudged against the electric light company *492alone, and tbis is assigned as error; but, as tbe awarding of ■ costs is discretionary in equity cases, and no abuse of discretion appears, tbere can be no reversal of tbis part of tbe .judgment.

A motion by respondent upon tbe argument to dismiss tbe -appeal because of alleged defects in tbe notice and undertaking is overruled, without costs, and is not deemed of suffi•cient importance to require discussion.

*By the Court.*— Judgment affirmed.