Blashfield v. Telegraph and Telephone Co. confirm us in the belief that the conclusion to which we have arrived is just and equitable. (Signed), JAS. B. LOCKWOOD, Chairman; JAMES H. MORAN, STEPHEN A. MARSHALL, concurring. NOTE.-The report of the commissioners was confirmed by Mr. Justice DYKMAN, of the Supreme Court of New York, on April 14th, 1896. I am indebted for the above report to William W. Cook, Esq., of New York City. See note to Thouron v. Schuylkill Elec. Ry. Co., post. H. WILSON BLASHFIELD, Appellant, v. THE EMPIRE STATE TELEPHONE AND TELEGRAPH COMPANY, Respondent. New York Court of Appeals, November, 1895. TELEPHONE LINE IN STREET-IMPROPER EVIDENCE OF DAMAGE TO ABUTTING OWNER. In an action for damages to an abutting owner by reason of the construction of a telephone line in the street, evidence of the value of his land as it would have been if the poles had not been erected cannot be received. APPEAL from order of General Term of Supreme Court, Fourth Judicial Department, which reversed judgment for plaintiff entered upon report of referee, and granted new trial. Franklin Pierce, for appellant. Frederic E. Storke, for respondent. PECKHAM, J.: This action was commenced to recover damages alleged to have been sustained by the plaintiff's assignors by the building of the defendant's telephone line along the highway opposite their lands. These owners, numbering some sixty different individuals, assigned their claims to the plaintiff, who brought this action, and after trial before a referee succeeded in recovering judgment in Blashfield v. Telephone and Telegraph Co. The his favor in a total of several hundred dollars. defendant denied some of the material allegations of the complaint, and also set up as an affirmative defense that plaintiff's attorney had purchased the various causes of action for the purpose of bringing suit thereon, and that the plaintiff had no real interest in the subject matter of the action, and was in reality only the representative of the attorney. A further defense was that whatever that damages had been sustained were the result of the acts of an independent contractor, for whom the defendant was not liable. Upon the trial evidence was taken tending to prove the damage sustained by each assignor by reason of the building of defendant's line and the erecting of poles in the highway abutting upon his land. In the course of the trial, the plaintiff, in addition to other and competent evidence upon the subject of damage, gave expert evidence under the objection and exception of the defendant in relation to the value of the land as it would have been if the poles had not been erected. This evidence, it is assumed on both sides, was erroneous as within the principle of our decision in Roberts v. Elevated R. R., 128 N. Y. 455. NOTE.-The important question under consideration in the foregoing case, both before the General Term (reported 71 Hun, 532, and a portion of the opinion re-printed 4 Am. Electl. Cas. 146) and before the Court of Appeals, grew out of the act of the referee in striking out, after the case was submitted, the evidence referred to in the above fragment of opinion, he having in the meantime become convinced of its incompetency. The General Term held that such striking out was error, and for that reason reversed the judgment. The Court of Appeals, while agreeing with the court below that such action of a referee would ordinarily be condemned, decided that this case was exceptional by reason of the circumstances, first, that there was other evidence sufficient to warrant the referee's determination; second, that by stipulation of the parties the referee was permitted to and did make a personal examination of the premises, and thus had power to add his own observation to the testimony of witnesses; and third, that the referee notified the attorneys for both parties, before making his decision, of his action in striking out the evidence, and thus gave them an opportunity to move to re-open the case and supply further evidence. Palmer v. Electric Co. WILLIAM D. PALMER, Respondent, v. LARCHMONT ELECTRIC COMPANY, Appellant. New York Supreme Court, General Term, Second Department, June, 1856. (6 App. Div. 12.) ELECTRIC LIGHT APPLIANCES IN HIGHWAY.-ABUTTING OWNERS. The Court of Appeals having decided in Eels v. Am. Teleph. & Tel. Co. (5 Am. Electl. Cas. 92), that telegraph and telephone posts and wires could not be maintained in a rural highway without compensasion to the owner of abutting land, held that the same rule must apply also to the appliances of an electric light company having a contract with the town authorities for lighting a highway. This in spite of the fact that the locus in quo was in an unincorporated village, and that in Whitcher v. Holland Water Works Co., 66 Hun, 619, affirmed, without opinion, 142 N. Y. 626, it was held that in such a village the abutting owner's rights were subject to the urban public easement for carrying a water supply; the court finding sufficient distinction in the different conditions of overhead structures and those underground. APPEAL from judgment of Supreme Court, Westchester county, upon the decision of the court without a jury. Wm. Sam. Johnson, for the appellant. Wm. Porter Allen, for the respondent. BROWN, P. J.: This appeal presents the question. whether an electric company, having a contract with the proper town authorities to light a public highway, may erect poles and wires upon said highway without the consent of the abutting owners. In Eels v. American T. & T. Co., 143 N. Y. 133, the Court of Appeals decided that neither the State nor any corporation could appropriate any portion of a rural highway by setting up poles for the support of telegraph or telephone wires. That decision was based upon the fact Palmer v. Electric Co. that the fundamental idea of a highway was a place for the uninterrupted passage of men, animals and vehicles, and to afford light, air and access to the property of abutting owners; that, in the latter respect, an abutting owner had a greater interest in the highway than the general public; that, consequently, any permanent or exclusive use of any part of the highway by any person or corporation was illegal. Upon that theory of the law it is impossible to make any distinction between poles intended to carry telegraph or telephone wires and poles intended to support electric light wires. The counsel for the appellant, however, distinguishes Eels' case from the case at bar on the ground that the maintenance and operation of a telephone or telegraph line is not a proper street use, while the maintenance of poles and wires for the purpose of lighting the street is a proper street use. The cases cited to sustain this argument, with two exceptions, which will be hereafter noticed, relate to easements in the streets of cities and incorporated villages, where such rights are conceded to be greater than in purely rural districts. It has never, however, been decided just how far the easements in urban streets will be extended beyond those in rural highways, and the court, in Eels' case, declined to decide the question, and its consideration is not important to our decision in this case. In the case of The Bloomfield, etc., Gas Light Company v. Calkins, 62 N. Y. 386, it was decided that a gas company had no authority to lay its pipes in a country highway without the consent of the abutting owners. In that case, however, the pipes were not sought to be laid for the purpose of lighting the highway or the property of abutting owners. The principle of law, however, upon which the decision was based was the same as that applied in Eels' case, that the right of the public in the highway was a mere VOL. VI-9. Palmer v. Electric Co. right of passage. Trustees, etc., v. A. & R. R. R. Co., 3 Hill, 567. If, therefore, we were to decide this case solely upon the character of a country highway and the rights therein of the public and the owners of the abutting land, it would be impossible to sustain the right of any person or corporation to appropriate absolutely to its use any part of the street. The possession of any part of the land would be adverse to the rights of the abutting owner and totally opposed to the legal character of the public easement in the highway. The appellant cites two other cases which may be briefly referred to. Van Brunt v. Town of Flatbush, 128 N. Y. 50, was an action by owners of lands fronting on Flatbush avenue in the town of Flatlands, to restrain the street and sewer commissioners of the town of Flatbush, acting under an act of the Legislature, from constructing a sewer through that avenue without the consent of the owners of the soil or the acquisition of their title in the manner provided by law. The projected sewer was for the benefit of the town of Flatbush and the inhabitants thereof and not for the benefit of the owners of the lands along Flatbush avenue in the town of Flatlands. The court held that the sewer could not be constructed upon the plaintiff's property without their consent or the acquisition of their title, but in the course of the opinion Judge EARL said: "If the Legislature had authorized a system of sewerage in the town of Flatlands for the convenience, health and welfare of the inhabitants of that town, and this sewer had been projected with lateral sewers with the privilege of the owners of adjacent lots to connect their lots therewith, then we are inclined to believe, for reasons we need not now state, that the character of the avenue and of the locality was such and the population is such that the sewer could be built in the avenue without the consent of the fee owners and without compensation to them. The |