Palmer v. Electric Co. WILLIAM D. PALMER, Respondent, v. LARCHMONT ELECTRIC COMPANY, Appellant. New York Supreme Court, General Term, Second Department, June, 1896. (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 The cases cited to sustain this arguproper street use. ment, 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 Palmer v. Electric Co. immediate benefits and advantages which they in common with the whole community might receive might be all the compensation to which they would be entitled." Whitcher v. Holland Water Works Company, 66 Hun, 619, affirmed in the Court of Appeals without opinion, 142 N. Y. 626, was an action by an abutting owner to compel the removal of water pipes from a highway in an unincorporated village. The plaintiff's complaint was dismissed at the trial, and this ruling was sustained by the General Term of the Fifth Department on the ground that the highway was to be treated as an urban street, and, therefore, was subject to be used for the purpose of supplying water to the inhabitants. In view of these decisions the question before us is not free from doubt. While that part of Judge EARL's opinion which I have quoted was entirely a dictum, the legal principle which he asserts is doubtless sustainable under the health and police powers of the Legislature. The decision in Whitcher's case, however, does, I think, sustain the contention that the streets in a populous community not incorporated as a city or village may be legally subjected to more extensive burdens than the ordinary country highway. The court, in this case, excluded an offer to show that the part of the town which was included within the appellant's contract was a populous village, and if density of population is the test by which the question is to be determined, this ruling was wrong, and the judgment must be reversed. Serious practical difficulties will, however, be encountered if the rights of abutting owners outside of cities and incorporated villages are to be dependent upon density of population. What is to be the line in respect to these easements which separate the urban from the rural district? Where do the more extensive urban easements begin and end? If we limit them to cities and incorporated villages the rule is simple, Palmer v. Electric Co. and the right of every land owner in the streets is easily solved. If we extend them outside of the incorporated villages, the rights of no land owner is settled, but each case must be determined on its own facts, and the decisions will vary with the varying minds and judgments of courts and petit jurors. The question as to the rights of an abutting owner in the street which bounds his property is one of law. The rule which controls it is a rule of property, and nothing can be plainer than that it should be certain and unvarying, and apply to all communities alike. Any community may incorporate into a village under our laws by a vote of its inhabitants, and in my judgment highways should not be treated as urban streets, and impressed with the more comprehensive public easements that exist in city streets unless they lie within a city or an incorporated village. If any community desires to enjoy the benefits of urban life and impose upon its streets more extensive easements than exist in rural highways, let it incorporate itself into a village. But independent of this consideration, I think the case before us is controlled by the doctrine laid down in Eels v. A. T. & T. Co., supra. That case in its facts is precisely like the case before us, except in respect to the use to be made of the poles and 'wires. The distinction would be shadowy, I think, that would (support as a legal exercise of power the erection and maintenance of poles and wires which carried an electric current to light a lamp on a street, but denied the right to erect and maintain precisely the same things, because they carried a weaker current of electricity for the purpose of communication and the transmission of intelligence. The thing that is important to the rights of the land owner is the substantial physical structure on the surface of the highway. The use to which it is put is secondary and unimportant. If the question depends on the use, and courts are to distinguish. between what is and what is not a proper street use, how |