Opinion
October 4, 1907.
Frank B. Vermilya, for the appellant.
I.J. Beaudrias [ Theodore Connoly and William B. Ellison with him on the brief], for the respondents.
By the Transportation Corporations Law (§ 102) leave is granted by the state to telegraph and telephone companies to construct and maintain their fixtures "over or under any of the public roads, streets and highways". This is full permission without compensation so far as the state can give it. Where, however, the fee of the highway belongs to the abutting owners, instead of being in the state, or any of its political subdivisions or bodies politic, compensation to such owners has to be made for the easement taken by such companies ( Eels v. Am. Tel. Tel. Co., 143 N.Y. 133). In the taking of land in Putnam county for its water supply, the city of New York is permitted to take the land in the adjacent highways also, for sanitary reasons, but only to care for such highways and hold them in trust for the public use as highways (ch. 445, Laws of 1877; ch. 490, Laws of 1883; ch. 189, Laws of 1893). The highway over which the plaintiff seeks to run its telephone wires on poles was acquired by the city in that way. It follows that the section of the Transportation Corporations Law already cited applies to it. To say that inasmuch as the city owns the abutting land also it is entitled to compensation may be specious, but not enough so to be misleading. That the city owns the abutting land does not make a difference, for the compensation, where it has to be given, is not given for the abutting land, but for the land in the highway, and here none can be exacted for the land in the highway, by reason of the leave granted by the statute ( People v. Kerr, 27 N.Y. 188).
The order should be reversed and the motion granted.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.