Telephone Co. v. Mackenzie.

it is nugatory and inoperative. As a consequence, whatever rights the appellant did acquire under the statute are subordinate to the property rights of the appellee, and the pleas which rely upon the statute and the ordinance, as giving the appellant authority to plant and maintain its posts and wires without regard to the injury caused the appellee, were very properly declared to be no answer to the action.

The remaining questions involved are presented by the exceptions taken to the admission of evidence, and to the rulings of the court on the prayers for instructions to the jury. There are twelve of these exceptions. Eleven of them relate to the admissibility of evidence adduced by the appellee upon the question of damages, and the twelfth to the granting of the appellee's second prayer, and the rejection of appellant's first.

It is not necessary to discuss separately the exceptions which relate to the measure of damages, for they all present the same question, substantially. The appellee proved by several witnesses the amount which, if they owned the property, they would, in their opinion, give not to have the pole placed where it is, and the amount which they would give to have it taken away. She further proved by another witness that, with the pole removed, he would be willing to pay more rent for the property than he would with the pole standing where it is; and by still another, that for the purposes of his business he would make a difference of $500 in the rental value of the premises. None of this testimony was admissible. The true measure of damages in such a case as this is not what a particular individual would be willing to charge for having the pole put up or remain, nor the amount some other person might consider the rental value was depreciated for the purposes of his business; but where the land of the plaintiff is not taken, or his soil actually invaded, the measure of damages, as adjudged in many cases, is either, first, the extent to which the rental or usable value of the particular property has been diminished by the trespass or injury complained

Johnson v. Electric Co.

of. Baltimore & Ohio Railroad Co. v. Boyd et al., 67 Md. 41; Wood, &c. v. State, use of White, 66 Md. 61; or secondly, the difference in the value of the property before the construction of the pole, and its value afterwards, if the depreciation in value has been caused by the erection. and maintenance of the pole. Shepherd v. Baltimore & Ohio Railroad Co., 130 U. S. 426.

For the error in admitting the evidence objected to in the first eleven exceptions the judgment must be reversed, and a new trial must be awarded.

Judgment reversed and new trial awarded.

NOTE.-See note to Detroit City Ry. Co. v. Mills, post.

WILLARD JOHNSON, Respondent, v. THE THOMSONHOUSTON ELECTRIC COMPANY, Appellant.

N. Y. Supreme Court, General Term, Fourth Dept., Nov., 1889.

(54 Hun, 469.)

ELECTRIC LIGHT FIXTURES IN STREETS.- RIGHTS OF ABUTTING OWNERS.

The erection and maintenance of electric light poles for street lighting is within the licensing power of a municipal corporation endowed by the Legislature with the control of its streets. It is a street use, for which the abutting owner is not entitled to additional compensation.

Granted the necessity of a pole in a given vicinity, and one owner cannot complain that it was erected over against his land rather than that of some neighboring owner.

Cases of this series cited in opinion: Tuttle v. Brush, &c. Co., vol. 1, p. 508; Met. Teleph. & Tel. Co. v. Colwell Lead Co., vol. 1,

p. 662.

APPEAL from judgment entered in Oswego county, requiring the defendant, an electric lighting company, to remove a pole in a street in the village of Fulton.

Johnson v. Electric Co.

Facts stated in opinion.

Giles S. Piper, for the appellant.

Mead & Stranahan, for the respondent.

MARTIN, J.: We are of the opinion that the plaintiff was not entitled to the relief awarded by the judgment herein. The defendant erected a pole in one of the streets of the village of Fulton, in front of the plaintiff's premises, without his consent. The board of trustees of the village granted to the defendant a license to erect poles and wires in the streets and grounds of the village. The act incorporating the village conferred upon such board jurisdiction and control over the streets therein. The Special Term found that the board had power to maintain lights in the streets of the village, and to procure and erect necessary fixtures for lighting such streets. The pole in question was erected for the purpose of supplying electricity for electric lights to light the streets of the village, and also for private use. It was also intended that a street light should be suspended therefrom. The learned trial judge held that the license of the board of trustees did not justify its erection or maintenance, and directed its removal.

It must be admitted that the streets of a populous village or city are subject to greater burdens and to a greater variety of uses than a rural highway, and that the extent of an easement in a street is to be measured by the necessities of the public. In Lahr v. Metropolitan Elevated Railway Company, 104 N. Y. 292, RUGER, Ch. J., said: "Statutes relating to public streets, which attempt to authorize their use for additional street uses, are obviously within the power of the Legislature to enact. * * * Such are the cases in respect to changes of grade, the use of a street for a surface horse railroad, the laying of sewers, gas and water pipes beneath the soil, the erection of street lamps and hitching posts, and of poles for electric lights used for street lighting. All of these relate to street uses

Johnson v. Electric Co.

Banctioned as such by their obvious purpose, and long continued usage, and authorized by the appropriation of land for a public street." In Tuttle v. Brush, etc., Company, 50 Super. (18 J. & S.) 464, it was held that city authorities had full power over the matter of lighting streets, and might authorize the erection of poles to be used for that purpose. See, also, Harlem Gas Company v. Mayor, etc., of New York, 33 N. Y. 327, and other cases cited in opinion in Tuttle case.

In Metropolitan Telephone and Telegraph Componyv. The Colwell Lead Company,50 N. Y. Super. (J. & S.) 488, it was held that the streets could not be used for the erection of poles to conduct telegraph and telephone wires, and in the Tuttle case the right to use the street for the purpose of supplying electricity to private persons was doubted. We think it quite clear that the trustees of the village of Fulton had power, under and by virtue of the provisions of the charter, to authorize the defendant to erect the pole in question for the purpose of lighting the streets of the village. That the board could properly authorize its erection, for the purpose of supplying light for private use, may well be doubted, as it could not devote the street to purposes other than those for which it was intended without compensation to the owner. Mahady V. The Bushwick R. R. Co., 91 N. Y. 148. We think it must be held that, under the license given by the trustees, the defendant had the right to erect this pole, and use it for the purpose of supplying electricity necessary to light the streets in that vicinity, and to use it as a point from which to suspend a street light. One, and perhaps the chief, purpose of locating the pole at this place was to furnish a proper light for the streets in that locality. So far as its erection was for that purpose, it was lawful, and did not invade the plaintiff's just rights. The fact that the defendant might have intended to use it for other and unjustifiable purposes may have entitled the plaintiff to an injunction restraining such unauthorized use, but did not, we think, entitle him to have it wholly removed, so long as

Johnson v. Electric Co.

it was reasonably necessary and proper for the public service.

*

It is true that the court found "that this pole was not necessary for the public use alone, and there were other places where it might have been located so as to answer the same purpose. Whether the trial judge intended by this finding to decide that no pole was necessary at that place for public use, or whether his intention was to find that it was not alone necessary for that purpose, but was also necessary for private use, is not quite clear. If the former, it is, we think, adverse to the concession of the parties, and against the weight of the evidence. On the trial it was conceded that this pole "was convenient and reasonably necessary to the furnishing light for public and private use." This concession involved the necessity of this pole to furnish light for public as well as for private use, and the evidence tended to show quite conclusively that such a pole in that vicinity was necessary for the proper maintenance of a street light which was required at that place. We do not think it an answer to the right claimed to say that this pole might have been placed on the land of others. If it was necessary that it should be located in that vicinity, the burden could as properly be imposed upon the street in front of the plaintiff's premises as upon the street in front of the premises of his neighbor. Upon the evidence, admissions and facts, as presented on this appeal, we are of the opinion that the judgment directing the removal of the pole in question was not justified; that the court erred in directing such judgment, and for that error the judgment should be reversed.

The judgment should be reversed, with costs to abide the

event.

HARDIN, P. J., concurred; MERWIN, J., not sitting. Judgment reversed on the exception and a new trial ordered, with costs to abide the event.

NOTE.-See note to Detroit City Ry. Co. v. Mills, post.