Thouron v. Railway Co. and another.

leaves it a matter of grave doubt, and we may not guess, as to the street line, and proposed location with reference thereto, and then make the guess the basis of an injunction." There appears to be nothing in the record that would justify us in sustaining either of the specifications, nor do they present any question that requires discussion. Decree affirmed, and appeal dismissed, with costs to be paid by the plaintiff.

NOTE.-In Haskell v. Denver Tramway Company, Colorado Supreme Court, May 18, 1896 (46 Pac. Rep. 121), held, that in Denver, where the fee of the streets is in the city in trust for the use of the public, an injunction will not be granted to an abutting owner to enjoin the laying of a street railway on the ground that it will impair his easement of ingress and egress, since he has a remedy in damages.

In Illinois, it is provided by statute that municipal corporations may grant the use of streets to street railways only in case a majority of the frontage of the abutting property owners have first consented. In view of this statute, it is held, in Beeson v. City of Chicago et al., U. S. Circuit Court, Northern District of Illinois, June 20, 1896 (75 Fed. Rep. 880), that in default of such consent the abutting owner is entitled to injunction restraining such use.

The question whether abutting owners are entitled to compensation for the use of streets for electrical purposes is one as to which the courts of different States are not yet in harmony.

Earlier decisions upon this subject may be found collated in notes, vol. 3, p. 318; vol. 4, p. 218 and vol. 5, p. 185, of this series.

As to the cases reported in the present volume:

In Pennsylvania, the District Court decided, in York Telephone Company v. Keesey, p. 107, that the telephone imposes no new burden. This was upon the authority of Lockhart v. Craig St. Ry. Co., 3 Am. Electl. Cas. 314, the telephone and the trolley railway uses being treated as in this respect analogous. It may be useful to observe that this decision would undoubtedly be limited to streets of municipal corporations, for in Penna. R. Co. v. Montgomery Co. Pass, Ry. Co., 5 Am. Electl. Cas. 166, it was held by the Supreme Court that in rural highways the trolley railway imposes a new servitude.

In New Jersey, it is provided by statute that telephone poles shall not be erected in streets without the written consent of abutting owners; who are therefore in position to demand compensation before giving such consent (State, Marshall, Pros. v. Bayonne, ante, p. 108).

In New York, it had been established by earlier cases that for the use of rural highways for telephone and telegraph purposes the abutting owner is entitled to compensation; and the cases here reported (Postal

Bradley v. Telephone Co.

Tel. Cable Co. v. Bruen, ante, p. 120, and Blashfield v. Empire State Teleph. & Tel. Co., ante, p. 126), relate only to questions of measure and amount of such compensation.

In Palmer v. Larchmont Electric Company, ante, p. 128, the Appellate Division of the New York Supreme Court decide that there is such analogy between telegraph and electric light uses, that from the decision of the Eels' case (5 Am. Electl. Cas. 92), by the Court of Appeals it follows necessarily that the use of a highway by an electric light company also creates a new servitude.

It is held in New Jersey (State, Roebling, Pros. v. Trenton Pass. R. Co., ante, p. 137), that the use of a highway by a trolley railway does not, and in New York (Clark v. Middletown-Goshen Traction Co., ante, p. 148), that it does, entitle the abutting owner to compensation.

CAROLINE L. BRADLEY V. THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY.

Connecticut Supreme Court of Errors, July 24, 1895.

(66 Conn. 559.)

TELEPHONE WIRES.-MUNICIPAL CONTROL.-CUTTING TREES.-CONFLICT

OF STATUTES.

A board of town selectmen cannot, either by virtue of statutory power to direct the location of telephone poles and wires, or by virtue of statutory power over the location of electric street railways, and the incidental power, if it exist, to compel a telephone company to change the location of its line so as to prevent interference with the wires of a railway, authorize the cutting of trees by a telephone company, without the consent of the owner, such cutting being forbidden to such companies by earlier statutes than those conferring the aforesaid powers upon

the selectmen.

APPEAL by defendant below from judgment of Superior Court, New Haven county.

John W. Alling and James T. Moran, for the appellant.

Edward H. Rogers, for the appellees.

Bradley v. Telephone Co.

TORRANCE, J.: The complaint in this case alleges that the defendant wrongfully entered upon the land of the plaintiffs, and cut and trimmed six trees growing thereon. The defendant filed three answers, the first being a general denial, and the second and third setting up certain facts in justification of the trespass charged. The case was tried to the jury, there was a verdict for the plaintiffs, and from the judgment upon the verdict the present appeal is brought.

The acts upon which the questions raised by the appeal depend may be stated as follows:

The land on which the trees stood is bounded on a public highway, and it lies partly in New Haven and partly in East Haven. The six trees in question stood just within the fence line adjoining the highway, four of them being on the New Haven part of the land, and two of them on the East Haven part, and their branches, to some extent, overhung the highway.

The defendant is a corporation created by the Legislature of this State, and authorized by its charter to construct and maintain telephone lines, including poles, wires and necessary fixtures, upon any highway of this State. It had, before the date of the alleged trespass, constructed a telephone line along the east side of the highway which bounded the plaintiff's land, and was then operating the

same.

On the 22nd of May, 1894, the selectmen of East Haven issued the following document to the defendant: "Whereas, in the construction of the line of the New Haven Street Railway Company, certain telephone poles and wires interfere with the running and operation of the electrical conductors and cars of said company, and it is necessary that said telephone poles and wires should be removed and relocated; now, therefore, we, the undersigned, selectmen of the town of East Haven, having, under the statutes of the State, direction and control over

Bradley v. Telephone Co.

the placing, removal, and relocation of structures upon the highways of towns, for the purpose of securing a proper construction of such railway, hereby order, direct and permit the removal and relocation by the Southern New England Telephone Company of sundry telephone poles and wires now located upon the lay out of said railroad in said town of East Haven, and to trim such trees upon said highway as may be necessary, for a distance of one foot from the outside wire of said line, according to the diagram hereto attached, and in accordance with the following detail, to wit: On the west side of Main street, from the town line southeasterly to road known as Horse Cart way, first north of town hall."

On the same day the selectmen of New Haven issued to the defendant a document in substantially the same language, respecting that part of the defendant's telephone line in New Haven which it was deemed necessary to change in the construction of the railway.

Under these documents the defendant removed its line of poles, then standing on the east side of the highway aforesaid, to the west side of the same, and relocated its poles along said west side at the points designated by the selectmen. In so doing, some of them were placed in the highway adjoining the plaintiff's premises, and, to permit the erection of the defendant's poles and wires at this point, the defendant cut and trimmed the six trees in question. In its second answer the defendant justified under these two documents issued by the selectmen as aforesaid. In its third answer it justified on the ground, in substance, that the parts of said trees cut and trimmed off were an obstruction and a nuisance to the public, in the use of the highway, and more especially to the defendant, in the construction and erection of its poles and wires at this point.

The controlling question in the case relates to the power of the selectmen, under the circumstances, to authorize the cutting and trimming of these trees; for, if they

Bradley v. Telephone Co.

possessed such a power, then the facts set up in the second answer, if true, would be a complete justification, independently of the other facts set up in the third answer, and, if they did not possess it, then we think the defendant could not justify under the other facts set up in the third answer, for the reasons hereinafter stated.

As this power, if it existed at all in the selectmen, was given to them by statute, it will be necessary to examine the statutes under which it is, or may be, fairly claimed such power was conferred; and, in connection with that examination, it will simplify matters, perhaps, to look first at the statutes which prohibit the cutting and injuring of trees, without the consent of the owner, by companies who are authorized to maintain electrical wires or fixtures of any kind on the public highways.

The statute under which the defendant in June, 1894, maintained its telephone line upon the highway in question, reads as follows: "Every telegraph or telephone company may maintain and construct lines of telegraph or telephone upon any highway, or across any waters in this State, by the maintenance and erection of the necessary fixtures, including posts, piers or abutments for sustaining wires; but the same shall not be so contructed as to incommode public travel or navigation, nor to injure any tree without the consent of the owner." General Statutes, sec. 3944.

The prohibition contained in this section, against injuring trees without the consent of the owner, was first passed in 1860. Public Acts of 1860, c. 66. And it has remained upon the statute book ever since. In addition to this prohibition, sec. 1477 of the General Statutes provides that every person who shall wilfully injure any tree in a highway "for any purpose connected with the erection or maintenance of any telegraph, telephone or electric light or power wires or fixtures, without the consent of the adjoining proprietor," shall be subject to fine and imprisonment; and sec. 1759 provides that "no telegraph, telephone