Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-06-05
POLES AND LOT owners
Telephone Poles Cannot be Erected in
Front of Lots Without Pay
ment Being Made.
Important Decision Handed Down in
Telephone Cases from cava-
lier County.
Several Other Decisions in Appealed
Cases Rendered by the
Supreme Court.

The supreme court has decided an
interesting contention in the suit of
E. I. Donovan VS.. the Langdon Tele-
phone Exchange company, composed
Of H: D. ALERT and r. L. Burke. The
plaintiff brought suit to enjoin the de-
PENDANTS from erecting telephone poles
in the street in front of his property.
The trial court refused to grant the
injunction. The supreme count Or
ders the Injunction granted, and the
following is the syllabus Of their
opinion:
The defendants were granted a
franchise to construct and operate a
telephone exchange in the city of
Langdon. The defendants proceeded
to perfect such a system and in doing
SO placed two telephone poles in the
street in front of plaintiffs lot and res
idence and in front of other lots be-
longing to the plaintiff, One of these
poles was set two feet from the side
walk and directly in front of a walk
leading from the sidewalk to the dwell
ing house. The defendants did not
pay plaintiff for such use nor offer to-,
nor did plaintiff consent to such use of
the street. The streets and alleys Of
said city were given and dedicated for
public use by the original proprietors
of the TOWNSHIP. Held.
l.. That the plaintiff is the owner
of the fee in the street to the center
thereof.
2. That such use of the street for
telephone poles is not a street use
proper and is a new burden or servi-
tude thereon inconsistent with the use
of the street for travel.
:. That the franchise from the city.
council to the defendants granting
them the privilege of constructing and
maintaining a telephone system in said
city did not and could not authorize
the occupancy of the plaintiffs fee in
said street for such purpose against
his consent unless compensation was
made to him.
4. That injunction is the proper
remedy to prevent such use Of the
street until the constitutional provision
in regard to compensation for taking
or damaging property for public use
has been complied with.
Appeal from the district court of
Cavalier county, w. j.. Kneeshaw,
judge.
Gordon & Lamb for appellant.
Cleary & Mclean for respondents.
Morgan, j., wrote the opinion.
In the case of D. H. Mcmillan, ap-
pellant, VS.. James Conat and Mrs.
Frank Conat, respondents, the order
granting a new trial affirmed, in the
following syllabus:
Upon an appeal from an order grant
ing a motion for new trial, which is
made upon a statement of the case, il
is essential to a review of the order by
this court that the appellant shall en-
body in his abstract such portions Of
the statement of the case as will estab-
fish the errors upon which he relies fol
a reversal and the particular grounds
or errors upon which the trial court
acted in making the order; and, in case
of a failure to do so, the order will be
affirmed.
Cleary & Mclean for appellants.
Dickson & Dickson for respondents
Opinion by Young, j.
In the case of Lizzie F~leischer, re
spondent, VS.. E. S. F1eischer, appel
liant, the supreme court hands down al
opinion with the following syllabus
Defendants husband made a timbe,
culture entry upon certain land AM
thereafter deserted the defendant. De
PENDANT, believing that she could not
as a married woman, contest the en-
try Of her husband, and fearing thai
the entry might be successfully con
tested by a stranger, entered into al
oral agreement with her son, the de
ceased, whereby the latter agreed Il
contest the entry of his father and, i
successful in such contest, agreed t:
make a timber culture entry upon sait
land and thereafter prove up and oh
tain in his own name such entry, ant
further agreed that after so obtaining
title he would convey the land to TIL
defendant without consideration othe,
than love and affection. Defendan
agreed on her part to pay all the LAM
Office expenses incident to carrying
out said oral agreement and to plan,
trees and cultivate the same and a,
her sole expense, to make all the i'm
provements required to be made upon
the land under the laws governin,
timber culture entries on government
land. The defendant fully compiled
with said agreement on her part, am
the deceased, after instituting a sue
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