State ex rel. Wisconsin Telephone Co. v. City of Sheboygan.

tral Teleph. Co., 7 Am. Electl. Cas. 256, 123 Mich. 51, 81 N. W. 928. See also Southern Bell Teleph. Co. v. Constantine, 4 Am. Electl. Cas. 219, 61 Fed. 61.

In the following cases it has been held that an abutting owner is entitled to compensation for injury to trees in the highway. Board of Trade Teleg. Co. v. Barnett, 1 Am. Electl. Cas. 505, 107 Ill. 507; Clay v. Postal Teleg. Co., 4 Am. Electl. Cas. 224, 70 Miss. 406, 7 So. 658; McGruder v. Rochester St. Ry. Co., 4 Am. Electl. Cas. 224, 28 N. Y. Supp. 13; Dailey v. Ohio, 5 Am. Electl. Cas. 186, 51 Ohio St. 348, 39 N. E. 710.

4. Rights of abutting owners.-a. Conflict of authority.-There is an entire lack of harmony among the adjudged cases in this country as to the question of whether the use of highways by telegraph and telephone companies constitutes an additional servitude for which abutting owners must be compensated. The cases are ranged not very unequally on both sides. In the note to the case of Nicholl v. N. Y. & N. J. Teleph. Co., 7 Am. Elect Cas. 283, a number of cases are cited both for and against the proposition that such a use is an additional servitude. And in this volume it is held, in the case of Bronson v. Albion Teleph. Co. (Neb.), 8 Am. Electl. Cas. 177, 93 N. W. 201, that poles and wires which permanently and exclusively occupy portions of a public street or highway, constitute an additional servitude, for which the abutting owner is entitled to compensation in case he is damaged thereby. To the same effect is Donovan v. Albert, 8 Am. Electl. Cas. 11 N. D. 289, 91 N. W. 441; Contra, Maxwell v. Central District & Printing Teleg. Co., 8 Am. Electl. Cas. 206, 51 W. Va. 121, 41 S. E. 125.

b. Rural highways where title is in abutting owners.-In New York a distinction seems to be made in the application of the rule as to compensation to owners of lands abutting upon rural highways, the title of which is retained by such owners subject to the public easement. It is there held that in a rural highway, the title to the center of which is in the abutting owner, subject to the public easement of travel, the erection and maintenance of telegraph poles and wires constitutes a new servitude, for which the abutting owner is entitled to compensation. Eels v. American Teleph. & Teleg. Co., 5 Am. Electl. Cas. 92, 143 N. Y. 133, 38 N. E. 202. But where the record title of the highway is not in the abutting owner, he cannot compel the removal of telephone poles from the highway, if they cause no substantial injury to any easement of light, air or access which he has in the highway. Hallernan v. Bell Teleph. Co., 7 Am. Electl. Cas. 253, 64 App. Div. 41, 71 N. Y. Supp. 685. The court in the case of Eels v. American Teleph. & Teleg. Co., supra, recognized the fact that the easement in a public street in a city or village might well be enlarged by the necessities of the case, and it was careful to say that it neither decided nor intimated that "the defendant would or would not have the right to place its poles in the city street without compensation to the owner if he owned to the center of the street." In the case of Castle v. Bell Teleph. Co., 7 Am. Electl. Cas. 261, 49 App. Div. 437, 63 N. Y. Supp. 482, the distinction was clearly drawn between urban and rural highways, and it was held that the placing of a conduit for elephone wires, beneath the sur

State ex rel. Wisconsin Telephone Co. v. City of Sheboygan.

face of a street, the fee of which is in the abutting owners, to take the place of poles previously erected and used in the street, imposes no additional burden entitling such owners to compensation.

It has been generally understood in Pennsylvania that the abutting owner has a fee to the middle of the adjoining street, and that the public has a right of passage over it; but this must not be taken in its literal sense, especially in towns and cities. What might be considered an invasion of a private right, so far as the use of a rural highway is concerned, might not be so in a city. Lockhart v. Craig St. Ry. Co., 3 Am. Electl. Cas. 314, 139 Pa. St.419, 21 Atl. 26. In the classification of, and distinction to be drawn between city streets and rural highways, the courts have treated village streets as more analogous and akin to the former than to the latter. Johnson v. N. Y. & Pa. Teleph. & Teleg. Co., 76 App. Div. 564, 78 N. Y. Supp. 598,

PART II

EMINENT DOMAIN; RIGHTS OF ELECTRIC CORPORATIONS IN HIGHWAYS; RIGHTS OF

ABUTTING OWNERS.

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