Avery v. Vermont Electric Co. lands. A dam of moderate elevation may flood the land of one whose premises are not contiguous to the stream, and who consequently has no interest in it. The maintenance of the petition upon the ground last urged would amount to a holding that all private lands in the State that can be flowed by the highest practicable dams are held subject to the full utilization of the streams upon which they lie. The Massachusetts court supports its position by holding that the mere flowing of land is not a taking of the property-a conclusion which we are not ready to adopt. We think Mr. Lewis is right in saying that appropriations of this character cannot be sustained without virtually expunging the words "public use" from the constitution. Judgment affirmed. Bronson v. Albion Telephone Co. TELEGRAPH AND TELEPHONE LINES IN HIGHWAYS; RIGHTS OF ABUTTING OWNERS. BRONSON V. ALBION TELEPHONE CO. Nebraska; Supreme Court. 1. ADDITIONAL SERVITUDE; COMPENSATION.-Poles and wires which permanently and exclusively occupy portions of a public street or highway, constitute an additional burden for which the abutting owner is entitled to compensation in case he is damaged thereby. 2. INJURY TO TREES.-Where an abutting owner has planted trees along the street adjacent to his property, under the terms of a city ordinance pursuant to statutory provisions, a telephone company, which removes, destroys, or injures such trees in erecting poles and wires under its franchise, is liable for the resulting damage, even though no unnecessary injury is inflicted. 3. WHEN OWNER NOT ENTITLED TO INJUNCTION.-In case property is not taken directly by a public undertaking, but an owner suffers some injury in an incidental right growing out of his peculiar situation or position, so that ordinary condemnation proceedings and payment of damages in advance are not practicable, the owner will be left to his remedy at law, and is not entitled to an injunction, unless upon proof of insolvency or some other special circumstance. 4. PROOF OF FRANCHISE. It is sufficient for a corporation, which seeks to defend upon the ground of a franchise, to show that it is actually possessed of the franchise. Whether such franchise was acquired, or is held rightfully, is to be determined only in a direct proceeding to oust the corporation, or in a proceeding to which some one who claims a better title is a party. (Syllabus by the court.) Commissioners' opinion. Judgment for defendants, and plaintiff brings error. J. A. Price, for plaintiff in error. M. W. McGan, for defendants in error. Bronson v. Albion Telephone Co. Opinion by Pound, C.: The plaintiff applied for an injunction to restrain defendant, a telephone company, from mutilating or injuring certain trees which she had planted in the street along and adjacent to her property. The trees had been planted under the provisions of a municipal ordinance, and were rightfully in the street, by virtue of sections 3-7, art. 4, ch. 2, and par. 24, sec. 69, art. 1, ch. 14, Comp. St. The company was erecting poles and wires under a franchise from the city. Upon demurrer to the petition, the District Court held that no cause of action was stated, and dismissed the suit. The right of an abutting owner to maintain shade trees upon or overhanging the sidewalk is general and well recognized. In many jurisdictions it is customary. With us it has the sanction of express legislation. But this right is subject to all proper uses of the street for the primary purposes for which it was dedicated or condemned. Hence, although a telephone or telegraph company is undoubtedly liable for unnecessary or wanton injury to such trees in erecting its poles and wires, liability for injuries, even amounting to removal or destruction of the trees, which are necessary or proper in the due carrying out of the public undertaking, must depend upon the much-mooted question whether use of a street or highway for poles and wires is an ordinary use, within the contemplation of the parties when it was dedicated or condemned, or is a new and additional burden, for which the abutting owner is entitled to compensation in case of injury. The authorities are very evenly divided upon the question whether a telephone or telegraph company is liable to the owner of the trees, where the injury does not go beyond what is necessary in the reasonable prosecution of the work. Such liability is affirmed in Daily v. State, 5 Am. Electl. Cas. 186, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Telegraph Co. v. Barnett, 1 Am. Electl. Cas. 565, 107 Ill. 507, 47 Am. Rep. 453; Bradley v. Telephone Co., 6 Am. Electl. Cas. 152, 66 Conn. 559, 34 Atl. 499, 32 L. R. A. 280; Clay v. Cable Co., 70 Miss. 406, 11 South. 658; McCruden v. Railroad Co. (Sup.), 28 N. Y. Supp. Bronson v. Albion Telephone Co. 1135. It is denied in Wyant v. Telephone Co., 7 Am. Electl. Cas. 256, 123 Mich. 51, 81 N. W. 928, 47 L. R. A. 497, 81 Am. St. Rep. 155; Telephone Co. v. Francis, 6 Am. Electl. Cas. 160, 109 Ala. 224, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930; Telephone Co. v. Constantine, 9 C. C. A. 359, 61 Fed. 61; Dodd v. Traction Co., 5 Am. Electl. Cas. 201, 57 N. J. Law, 482, 31 Atl. 980. All of the cases first cited are from jurisdictions where poles and wires which permanently and exclusively occupy portions of the street or highway are held to constitute an additional burden. Of those last cited, Wyant v. Telephone Co. is from a jurisdiction wherein it is held that there is no additional burden in such cases. On the other hand, Dodd v. Traction Co. was decided in a jurisdiction where telegraph and telephone poles and wires are not regarded as ordinary uses of the highway; and in Telephone Co. v. Francis it is held that the right to remove trees in whole or in part, in the proper prosecution of such an enterprise, does not depend upon the question whether there is an additional burden, but follows from the paramount right of the public, to which the right to maintain the trees is subject, of removing such trees when necessary for public uses. If this proposition is maintainable, we need not consider how far the poles and wires are an ordinary use of the street. But, in our opinion, it is not sound. The right to maintain the trees confers an additional value upon the abutting property. This value cannot be cut off without due compensation. When the public conferred it, a valuable property right was created. Relying upon the statutes and municipal ordinances pursuant thereto, owners have expended time and money in improving their property. This grant cannot be resumed, and the property thereby depreciated in value without compensation. Undoubtedly the grant in the first instance was subject to all ordinary uses to which the street might be put. But to say that it was subject to all public uses, whether ordinary or not, which might be deemed convenient thereafter, is going entirely too far. It becomes necessary, therefore, to decide whether telegraph and telephone poles and wires, which permanently and exclusively occupy portions of Bronson v. Albion Telephone Co. a public street or highway, constitute an additional burden for which the abutting owner is entitled to compensation in case he is damaged thereby. The text writers are pretty well agreed that they do. Dill. Mun. Corp. sec. 698a; Elliott, Roads & S. 534; Lewis, Em. Dom. sec. 131; Rand. Em. Dom. 407. But Mr. Keasbey thinks it too soon to predict which view will prevail ultimately. Keasbey, Electric Wires in Streets and Highways, sec. 101. The adjudicated cases are ranged not very unequally on both sides. The following cases, among others, support the view that there is an additional burden: Eels v. Telegraph Co., 5 Am. Electl. Cas. 92, 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640, and other decisions in New York; Daily v. State, 5 Am. Electl. Cas. 156, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Callen v. Light Co., 66 Ohio St. 166; 64 N. E. 141; Telegraph Co. v. Barnett, 1 Am. Electl. Cas. 565, 107 Ill. 507, 47 Am. Rep. 453; Cable Co. v. Eaton, 170 Ill 513, 49 N. E. 365, 39 L. R. A. 722, 62 Am. St. Rep. 390; Halsey v. Railway Co., 3 Am. Electl. Cas. 283, 47 N. J. Eq. 380, 20 Atl. 859; Nicoll v. Telephone Co., 62 N. J. Law, 733, 7 Am. Electl. Cas. 277, 42 Atl. 583, 72 Am. St. Rep. 666; Telegraph Co. v. Williams, 3 Am. Electl. Cas. 184, 86 Va. 696, 11 S. E. 106, 8 L. R. A. 429, 19 Am. St. Rep. 908; Telephone Co. v. Mackenzie, 3 Am. Electl. Cas. 196, 74 Md. 36, 21 Atl. 690, 28 Am. St. Rep. 219; Stowers v. Cable Co., 68 Miss. 559, 9 South. 356, 12 L. R. A. 864, 24 Am. St. Rep. 290; Krueger v. Telephone Co., 7 Am. Electl. Cas. 285, 106 Wis. 96, 81 N. W. 1041, 50 L. R. A. 298; Cable Co. v. Irvine (C. C.), 49 Fed. 113; City of Spokane v. Colby, 16 Wash. 610, 48 Pac. 248; Kester v. Telegraph Co. (C. C.), 108 Fed. 926. The opposite view is supported by Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7 (decided by a divided court); Julia Bldg. Ass'n v. Bell Tel. Co., 1 Am. Electl. Cas. 801, 88 Mo. 258, 57 Am. Rep. 398, and other cases in Missouri; People v. Eaton, 100 Mich. 208, 59 N. W. 145, 24 L. R. A. 721; Cater v. Exchange Co., 5 Am. Electl. Cas. 111, 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310, 51 Am. St. Rep. 543; Magee v. Overshiner, 7 Am. Electl. Cas. 241, 150 Ind. 127, 49 N. E. 951, 40 |