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the land under the way for gas-pipes or sewers would effectually prevent his own use of it for cellarage or similar purposes.
When the land was taken for a highway, that which was taken was not merely the privilege of travelling over it in the then known vehicles, or of using it in the then known methods, for either the conveyance of property or transmission of intelligence. Although the horse railroad was deemed a new invention, it was held that a portion of the road might be set aside for it, and the rights of other travellers, to some extent, limited by those privileges necessary for its use. Commonwealth 1. Temple, ubi supra; Attorney-General v. Metropolitan Railroad, ubi supru. The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach. It is a newly discovered method of exercising the old public easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out. Under the clause to regulate commerce among the States, conferred on Congress by the Constitution of the United States, although telegraphic communication was unknown when it was adopted, it has been held that it is the right of Congress to prevent the obstruction of telegraphic communication by hostile State legislation, as it has become an indispensable means of intercommunication. Pensacola Telegraph v. Western Union Telegraph, ubi supra.
No question arises as to any interference with the old methods of communication, as the Statute we are considering, by $ 8, guards carefully against this by providing that the telegraphic structures are not to be permitted to incommode the public use of highways or public roads. We are therefore of opinion that the use of a portion of a highway for the public use of companies organized under the laws of the State for the transinission of intelligence by electricity, and subject to the supervision of the local municipal authorities, which has been permitted by the Legislature, is a public use similar to that for which the highway was originally taken, or to which it was originally devoted, and that the owner of the fee is entitled to no further compensation.
There remains the inquiry, whether there is any objection to the Statute because it does not provide a sufficient remedy for the owners of property near to or adjoining the way, who may be incidentally injured by the structures which the telegraph companies may have been permitted to erect along the line of the highway and within its limits. Such remedy is given by § 4, as the Legislature deemed sufficient. We should not be willing to believe that the landowner thus injured would be without remedy, if the company failed to pay the damages lawfully assessed under this section, while it still endeavored to maintain its structures ; but the only compensation to which such owner is entitled is that which the Legislature deems just, when it permits the erection of these structures. The Legislature may provide for compen.
sation to the adjoining owners, but without such provision there can be no legal claim to it, as the use of the highway is a lawful one. Attorney-General v. Metropolitan Railroad, ubi supra.
The clause in the Declaration of Rights which provides that “when-/ ever the public exigencies require that the property of any individual) should be appropriated to public uses, he shall receive a reasonable compensation therefor,” is confined in its application to property actually taken and appropriated by the government. No construction can be given to it which can extend the benefit of it to the case of one who suffers an indirect or consequential damage or expense by means of the rightful use of property already belonging to the public. Callender v. I. Marsh, 1 Pick. 418, 430.
The majority of the court is therefore satisfied that the demurrer to this bill was properly sustained, and the entry will be,
C. ALLEN, J. A minority of the court, consisting of MR. JUSTICE WILLIAM ALLEN and myself, are unable to agree with the majority of the court upon the principal question in this case, which is this: When the public has acquired an easement in land for a highway, by taking it under the right of eminent domain, by prescription, by dedication, or by grant, is an additional servitude to be deemed as imposed by appropriating the highway, under legislative authority, for the use of a line of electric telegraph, by the erection of poles and wires above the surface of the ground, so that the owner of an abutting estate and of the soil to the centre of the highway is entitled to further compensation therefor? The corresponding questions are necessarily involved, whether, when land is taken for a highway by the right of eminent domain, it is to be considered as an element of the damages sustained by the owner, and to be paid by the city or town, that the land may be used, not merely for a highway, but also for a telegraph line; and whether, in case of a dedication or grant of land for a highway, with or without the payment of a consideration, the right of establishing a telegraph line along the highway, under the authority of general or special Statutes, is also included by implication.
If such owner is in law entitled to further compensation, it is plain that the Statute fails to meet the constitutional requirement, inasmuch as no adequate provision for such compensation is made. A mere right of action at law is not sufficient. Connecticut River Railroad v. County Commissioners, 127 Mass. 50.
It has been held in this Commonwealth and elsewhere, though without entire uniformity of decision, that the establishment of a street railway does not entitle the owner of the land to further compensation. Attorney-General v. Metropolitan Railroad, 125 Mass. 515. Recognizing this decision as founded on just principles, the question remains, whether the same rule applies to other uses, and with what limitations, if any.
The great weight of opinion thus far expressed by courts is that street railways, with cars propelled by horse-power, are not to be regarded as imposing a new servitude which will entitle the owner of the fee of the highway to additional compensation, but that steam railroads are to be so regarded. It is considered that the latter use is so far different in its nature, that the law ought to take notice that it could pot have been within the contemplation of the parties that the laying I put of an ordinary highway should also include such a mode of travelling. While it is always recognized that the proper and contemplated pise of the highway is not to be deemed limited to such vehicles as are in use at the time, it is considered to be too great an extension of the easement acquired by the public to hold that it embraces its use for a 'steam railway. At this point the line has been drawn by a great weight of judicial decision. See Williams v. New York Central Railroad, 16 N. Y. 97; Wager v. Troy Union Railroad, 25 N. Y. 526, 535; Jersey City & Bergen Railroad v. Jersey City & Hoboken Horse Railroad, 5 C. E. Green, 61; Imlay v. Union Branch Railroad, 26 Conn. 249, 255; Grand Rapids & Indiana Railroad v. Heisel, 38 Mich. 62; Sherman v. Milwaukee, Lake Shore & Western Railroad, 40 Wis. 645; Kucheman v. Chicago, Clinton & Dubuque Railway, 46 Iowa, 366; Kaiser v. St. Paul, Stillvater & Taylor's Falls Railroad, 22 Minn. 149 ; Southern Pacific Railroad v. Reed, 41 Cal. 256 ; Cooley Const. Lim. 546, 550 ; 2 Dill. Mun. Corp. $$ 722,
The use of a highway for the purpose of communicating information by electricity, by means of posts and wires erected along its course, may, in a certain sense, be said to be a use for a purpose similar to that for which highways are established ; namely, the increase of communication between persons at different points. But this is a somewhat remote analogy, and the more direct purpose of establishing highways is to enable persons and teams to pass more easily from one place to another. The analogy between a steam railway and conveyance by ordinary teams is much more direct.
The multiplication of telegraph and telephone posts and wires in thickly settled places within the past few years makes the question at issue one of great importance. There can be no doubt that in many instances an actual injury is done to the remaining or abutting land along a highway or street by the erection of such posts and wires; and the extent to which this may be carried in the future cannot easily be foreseen. When a telegraph line consisted of only a single row of small posts, with a few wires, the matter was of less importance. But common observation shows that now the posts are large and numerous, fitted with cross-beams adapted for layer after layer of almost countless wires ; and the establishment of the different kinds of electrical lines involves to some extent a destruction of trees along the highways or streets, an occupation of the ground, a filling of the air, an interference with access to or escape from buildings, an increased
difficulty in putting out fires, an obstruction of the view, a presentation of unsightly objects to the eye, and a creation of unpleasant noises in the wind. The actual injury thus done to adjoining property may certainly be quite serious; and if, when land is taken or granted for a highway, it is understood that such use may also be made of it, there can be no doubt that in many instances a very substantial increase of compensation would justly be granted to the owner; because, in assessing damages when land is taken for a highway, it is not merely a question what the land actually taken is worth, or what will be the extent of the injury from the deprivation of its use, but the owner is also entitled to compensation for the incidental injury to his remaining land, which is to be estimated with reference to the use for which the land taken from him is to be appropriated, and such damages are to be allowed to him as will fairly compensate him in view of the purposes of the appropriation. Walker v. Old Colony & Newport Railway, 103 Mass. 10, 14; Johnson v. Boston, 130 Mass. 452, 454.
Heretofore, the consequential injury to the remaining land of the owner, arising from the possibility of a future use of the highway for telegraph and telephone wires, has never, so far as we have been informed, been considered as a proper element of damages. No case is cited or known where it has been held, or even contended by counsel, that damages should be included for such possible use.
If the right exists to establish electrical lines with many wires, without further compensation, the owner is entitled to be paid at the outset for all such rights which are acquired against him, on the assumption that they will be exercised to the full. No one can tell in advance how extensive a use will actually be made ; but if it is an incident to laying out a highway that lines of telegraph or telephone may be authorized, the owner of the land certainly has no control over the number of posts and wires that may be used, and the right is not subject to any limit except the discretion of other persons than himself. In fixing his compensation, it must therefore be borne in mind that he has no right whatever to limit the use which may be made of the highway for these purposes. The result will follow, that when his land is taken for a highway he will be entitled to receive, and the public will be compelled to pay damages, one element of which is uncertain. It may happen that no such use will be made of the highway. It may be the case that the authorities who lay out the way, and the city or town which has to pay the expenses of laying it out and keeping it in repair, do not wish to take or pay for the right to have telegraph lines established on it. They may not think such a line in that place necessary or desirable. Nevertheless, if it is incident to laying out a bighway that a telegraph line may thereafter be established upon it, by the sanction of a future board of municipal officers, this right must of necessity be paid for at the outset, unless the owner of the land will have a subsequent claim for additional damages; otherwise his property is taken from him without compensation.
It is going quite too far to hold that in law it must be deemed to have been within the contemplation of the parties, at the time of the laying out of the highway, that it might be used for such new and additional purposes. They are in their nature essentially distinct from the ordinary use of a highway by travellers. It is not desirable to impose this new burden upon the laying out of highways. If the public convenience and necessity require a new highway, but do not require a line of telegraph over it, the public authorities ought to be able to take such an easement as will subserve the public requirement, without being subjected to the necessity of paying for a right which is not needed) nor desired. The use of a highway for telegraphic purposes is not naturally included in the original design, nor naturally incidental to its use for travel. Highways can be and are conveniently used without telegraphs or telephones. The latter can be established without the use of the highway. It may be convenient in many instances to use the highway for electrical lines. Whenever this proves to be the case, there is no hardship in requiring those who wish to establish such lines to pay for the privilege such damages, if any, as may be caused to the owners of property by such use. In many instances, no doubt, there would be no damages. But in cases where actual damage is thus caused, there is no good reason why it should not be paid for by those who will derive the benefit. It is more just and reasonable that such payments should be made, as for an additional use or servitude, than that it should be included at the outset, when it is not known whether such use will be required or not.
There is another reason for holding that the right to establish electrical lines is not included in the laying ont of a highway. When land is taken for a highway, the payment of damages is to be made by the city or town within which it lies. But a city or town has no legal right to appropriate money for the establishment of a line of telegraph or telephone for the general public use. A direct vote of a town to subscribe for shares in a company, or to contribute money in aid of such establishment, would clearly be illegal and void, as not falling within the classes of objects for which municipal expenditures may be made. If, therefore, the owner of the land is entitled to be paid for the right to establish lines of telegraph or telephone along the highway, in the future, as an incident to the use of the land for the highway, and if the city or town is to pay for the damages caused by the laying out of the highway, including all incidental damages to the remaining land, it follows that the city or town is thus made to contribute money, possibly against its will, for an illegal purpose. By construction of law, it will also be held to have paid money in the past for expenses which it had no actual intention and no legal right to incur. And the electrical companies will be declared entitled to reap the benefits accruing from such payment, for their own advantage. The Legislature has never intended to require or to allow towns and cities to pay for privileges to be enjoyed by electrical companies, which may be organized