The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1895-11-08
INJUNCTION DENIED.
JUDGE SEVERANCE RULES ON
THE BUSCH-TELEPHONE CASE.


He Explains His Decision in a De-
tailed Memorandum, and Says That
the Plaintiff Can Secure Damages
for Injury to His Property, But
Cannot Now Prevent the Compile
ton of the Systematic Pole Set
ON the Busch Corner Friday--The
Next Step.
Judge Severance has filed his de-
cision in the application of A. j,
Busch to restrain the Northwestern
Telephone Co. from placing a new
pole in front of his property. He de-
MED the motion for a temporary in
junction and discharged the order to
show cause.
The pole was erected today, and the
next step will be to bring suit for
damages or the removal of the pole,
in the District court at the December
term.
Accompanying the decision is a
memorandum, the main portion of
which we give in full, on account of
the Importance of the matter:
The real question in the case is,
would the erection proposed to be put
on the premises in question by the de-
PENDANT impose an additional servi-
tude upon the property of the plain
tiff: if it would, then the plaintiff is
entitled to compensation, for such an
appropriation Of plaintiffs property
would be taking of private property
for public use. suppose no question
can be made but what the operation
Of a telephone system is public use,
Now, whether or not the erection of
telephone line on a public street i'm
poses an additional servitude Oh
abutting property must depend upon
the circumstance Of each particular
case. Mere Inconvenience is not an
additional servitude. Some valuable
right OF the property owner must be
impaired which is not yielded up up
on the appropriation of the property
as a public street or highway. The
act complained of,here is to be done in
the sidewalk presumably constructed
by the plaintiff, yet it is part of the
public street, under which the fee
of the plaintiff extends to the center
of the street. The complaint is that
the erection of the poles in question
with cross bars and electric wires dis
turbS plaintiffs access to his building,
denies him the free use and light and
air, subjects his property to an en-
HANGED danger from fire, and thereby
impairS the value of his property.
The claims of the plaintiff and de-
fendanti present disputed questions of
fact upon the determination of which
depends the question as to whether or
not the erection in question will inn
pose an additional servitude upon the
property of the plaintiff by distruc-
tion of property rights or special ease
ment, right to enjoyment Of which
has not already been surrendered by
the appropriation OF the property in
question as public street. Questions
of fact must be tried in order to de-
eide the vital question in this case,
and should the work of the defendant
be stayed by Injunction until those
questions are tried and determined,
or should the defendant be permitted
the hazard of an adverse determination
of these questions. 1t appears that
the poles for the line are all up on
Front street in Mankato save the one
intended to be erected ON the land of
plaintiff, and without the erection of
this pole, the line on that street can
not be constructed or completed.
If the questions at issue are finally
o. n
must abandon it's project or acquire
the right to erect it's line on the prop
erty of the plaintiff by contract or
condemnation.
There is no claim but what the de-
PENDANT is solvent and able to respond
in damages for any act it cOntem-
plates on plaintiffs property. The
main facts from which the plaintiff
claims that his damages arise are
fairly put on issue by the answer of
the defendant, and the question of
additional servitude is asserted and
denied.
There is no reason why, if the tenn
porary injunction is denied, the plain
tiff cannot have adequate relief in
this action for any damages done, and
determination of the main question
in the case against the defendant
would force it to resort to private con-
tract or condemnation. AS the work
proposed to be done by the defendant
is a public utility, and as the damages
done and threatened by the defend
ant, if they have and will occur as al
legged by the plaintiff, cannot be said
to be strictly irreparable, ! think it
the duty of the court to refuse the
temporary injunction asked for.
do not suppose any question can
arise but what the defendant, if it
has not such right now it can acquire
it to erect the line of telephone as it
intends to on the premises of the
plaintiff. No doubt, if. the change Of
the location of the pole in question
few feet one way or the other would
obviaJe the most serious objection of
the plaintiff, that could be amiciably
accomplished.
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