American Telegraph & Telephone Co. v. Harborcreek Township

23 Pa. Super. 437, 1903 Pa. Super. LEXIS 93

• Court: Superior Court of Pennsylvania
• Decided: October 5, 1903
• Docket: Appeal, No. 106
• Status: Published

Opinion

Opinion by

W. D. Portee, J.,

In the discharge of the duty imposed by law upon road commissioners, to keep public roads and highways clear of all impediments to easy and convenient passing and traveling, those officers are vested with a discretion to make reasonable regulations, to which those who have rights in the highway must conform. The act of congress of July 24, 1866, empowering telegraph companies to construct their lines along any post road, has not the effect of putting such companies beyond municipal control with respect to the use of the highways: American Rapid Telegraph Company v. Hess, 125 N. Y. 641 (26 N. E. Repr. 919); Richmond v. Southern Bell Telegraph & Telephone Company, 85 Fed. Repr. 19; 174 U. S. 761 (19 Supreme Ct. Repr. 778); Postal Telegraph & Cable Company v. Charleston, 153 U. S. 692 (14 Pa. Supreme Ct. Repr. 1094) ; Michigan Tel. Co. v. Charlotte, 93 Fed. Repr. 11. When upon the opening of a road, or the original construction of a telegraph line in an existing highway, the road commissioners have adopted such regulations as they may at that time deem expedient, their power of regulation is not thereby exhausted; they may adopt and enforce such new regulations as increased traffic and changed conditions may require. When the road commissioners have adopted such regulations, the court will not interfere in the absence of evidence establishing an abuse of discretion: American Telegraph & Telephone Company v. Millcreek Township, 195 Pa. 643. The road commissioners of Harborcreek township have adopted a regulation requiring all telegraph lines to be erected along the property line. The right of the appellant to construct its line within the highway is not controverted, nor was it averred in the bill or suggested in tbe evidence that the enforcement of these regulations would require the appellant to occupy private property outside the line of the highway. All parties to this controversy proceeded in the court below upon the theory that this regulation required the removal of the poles of the appellant to that part of the highway next to the property line, which is the only reasonable construction that could have been put upon the regulation. The learned counsel for the appellant now argues that if the poles are so placed, the cross-arms carrying the wires must upon one side extend over private property; there was no allegation of this character in the bill, and it is not sustained by testimony ; so far as the averments of the pleadings and the evidence in the case are concerned, the line might have been erected without cross-arms upon the poles, or with arms upon one side. If cross-arms are a necessary part of the poles, then the regulation would have to be construed with a view to that necessity, and the poles so placed that the entire line would be within the highway. The regulation in question does not seem to have involved an abuse of discretion, and for the reasons given by the learned judge of the court below, the decree is affirmed and the appeal dismissed at cost of the appellant.