Opinion
March, 1904.
Roberts, Tuthill Rogers [ Theodore R. Tuthill of counsel], for the appellant.
Robert B. Richards [ Richard H. Thurston of counsel], for the respondents.
The appellant contends that erecting telephone poles in a rural public highway and stringing wires thereon is not an added burden to the owners of adjoining real property, having the title to the fee of the highway within the bounds of which the poles are set and over which the wires are run.
A discussion of the subject in this court seems unnecessary, for the reason that the Court of Appeals in Eels v. A.T. T. Co. ( 143 N.Y. 133) has clearly held against the appellant's contention. The material facts in that case are very similar to the facts in this case, and the court in that case held that a telephone and telegraph company had no right to appropriate a public highway to its own special and continuous use by erecting poles therein and stringing wires thereon without the consent of the owner of the fee of the highway, and without acquiring the right so to do by condemnation proceedings. (See, also, Peck v. Schenectady R. Co., 67 App. Div. 359; S.C., 170 N.Y. 298; Paige v. Schenectady R. Co., 77 App. Div. 571. )
An injunction may be issued at the suit of the owners of the fee of a highway to prevent persons or corporations from erecting a telephone line on and over the same for continuous and permanent use. ( Paige v. Schenectady R. Co., supra; Peck v. Schenectady R. Co., supra.)
Even if the court has a discretion in regard to granting an injunction in a case where the facts are substantially undisputed, such discretion in this case has been exercised by the Special Term in favor of granting the injunction, and there is nothing before us to show that such discretion was improperly exercised or abused.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.