American Telephone & Telegraph Co. v. Morgan County Telephone Co.

138 Ala. 597

Opinion

HARALSON, J.

The contention on the part of the complainant is, that without its consent the defendant has no right to erect its poles on Moulton or other streets in the city of New Decatur, between the poles of complainant, and to string its wires on or near the top of these poles, above the wires of complainant, in the manner set forth in its bill; while that of the defendant is, conceding an equal right to' the complainant with itself, to the use of the streets of said city for its telephone or telegraph purposes, that complainant has no right to said streets superior to the right of defendant to erect, maintain and operate its telephone system, so long as defendant does not, in some serious and permanently injurious manner, interfere with the complainant’s rights

It is shown, "that both companies are occupying parts of the street in said city, with the permission and under the direction of the city authorities,-duly invested with authority to this end, and under their regulátion and control. The rights of each are equal, and not superior to the rights of the other — the principle being well settled, that no company can, under ordinary circumstances, assert and maintain a right to the exclusive enjoyment of a public street in a city. “Monopolies are not favorites in the la.w, and if a street has sufficient width and capacity to admit of more than one public enterprise, without unduly obstructing it as a public highway, an exclusive right should not be granted to one company, and if granted, except under peculiar circumstances,-it may and should be revoked.”- — Consolidated Electric Light Co. v. Peoples Electric Light & Gas Co., 94 Ala. 374. As was said by us in another and similar connection: “It may be safely stated, as applicable to all conditions, that no one public corporation of the kind should be given a monopoly to the exclusion of others in the use of the streets of a city. Ordinarily, such privileges should be granted, equal with and not superior to other like enterprises established for the use of the public. The State licenses such enterprises, not simply that the owner of them may earn profits by establishing and' operating them, but that the general' public may enjoy the benefits of tlieir existence; and when two are authorized by law to use the same street or avenue, it should be with the express or implied condition, that each shall respect the rights and interest of the other and occasion no injury or harm to the other. The matter of the regulation of such public corporations is usually, committed to the municipalities, where they are established.” The two companies are in the legal attitude of using, in a sense, their own property, the obligation of each being to so use its own property as not to do unnecessary injury to that of another; and for any default in that particular, the rule is applicable, that the negligent party is liable to the one injured in an action of damages resulting from its own negligence. Birmingham Traction Co. v. Southern Bell Telephone & Telegraph Co., 119 Ala. 148, 151. The principle is familiar that, “If one do an unlawful act upon his own premises, he cannot be held responsible for injurious consequences that may result from it, unless it was so done as to constitute actionable negligence.” So, it was announced in the case referred to that, “whatever incidental annoyance or injury may result from the rightful and lawful use of the streets, ■with no want of care for the rights and interests of others entitled to like use, is damnum absque injuria, and so far as persons operating under legislative grants are concerned, something more than individual damages to another must be proved' — something in fact, in the nature of an abuse of the franchise' — to entitle the party to an injunction.” — Cumberland Telephone & Telegraph Co. v. W. Electric Co., 42 Fed. Rep. 273; 25 Am. & Eng. Encyc. Law (1st ed.), 764, 767.

In Rouse v. Martin, 75 Ala. 513, referring to the case of private nuisances — directly applicable here — it was held, that in such cases an injunction will generally be granted only when there is a strong and mischievous case of pi’essing necessity, and not because of a trifling discomfort or inconvenience suffered by the party complaining; that when the injury complained of is not a nuisance per sc, but may become so by reason of cir .cumstauces — being uncertain, indefinite or contingent— equity will not interfere; that public benefit will preponderate over private inconveniences; that in doubtful cases, an injunction will always be denied, or dissolved on motion when granted ail interim, and that a very strong case must be made by the bill for injunction, and if there be reasonable doubt, as to the probable effect of an alleged nuisance, either on proof, affidavit, or on the construction of the facts stated in the bill, there will be no interference until the matter is tested by experiment in the actual use of the property. — 1 High on Injunctions, Sec. 788. “Nor will the court interfere when the thing complained of is not in existence, but may be called into existence by the threatened acts of the defendant, in the exercise of his lawful dominion over his property, and it is uncertain, dependent upon circumstances in the future,.whether it will or will not operate injuriously.” — Kingsbury v. Flowers, 65 Ala. 484. In the case cited from 75 Ala., the court added; “Great caution should always be exercised before interfering with establishments which have a tendency to promote public utility or conveniences, and in cases of this nature, equity will not enjoin the lawful use of such property in a city, when by the proper application of scientific appliances and machinery, the torts corn-pained of may be removed; and in such cases the court will go no further than to require such appliances to be used.” Where it is sought to restrain a business establishment, not per se a nuisance, but only liable to become such by the manner of its carrying on, the bill may, in the discretion of the court, be held until the objectionable results can be remedied by scientific and skillful appliances, especially when the answer discloses that such remedies are practicable and will be applied, if necessary. — Rouse v. Martin, 75 Ala. 515; English v. Progress Electric Light Co., 95 Ala. 259.

B'rom the principles above announced, as here applicable, the case may be readily disposed of. It appears that the averments of the bill upon which the right of injunctive relief is claimed, have been directly and fully denied by tlie sworn answer of the defendant. Starting with the proxiosition, which cannot be denied, that the defendant has the same right to the street that complainant has so long as it does not interfere in some unlawful manner with the rights of the complainant, we have failed to discover, after a careful examination of the averments of the bill and the answer thereto, that defendant has been guilty of any interference with complainant’s rights. The fact that defendant’s poles are being erected between those of complainant, on the same side of the street, of itself is of but little importance. These poles, it reasonably appears, are of a size, and height, to make them, for the purposes intended, equal to those used by complainant; that they extend above those of complainant sufficiently far, to enable defendant to string its wires, above the comx>lainant’s, and at such distance from them, as not to interfere by contact with them, or to act as conductors of electricity from them. It further apxiears that these poles are to be let into the ground about six feet, and will be braced as well as may be, against swaying. If these x>oles and wires, in the process of erection, come into contact with those of complainant, such contact must be temporary and incidental to their erection; and the defendant’s wires, on the completion of its system, are designed not to touch, and in all reasonable expectation will not interfere with complainant’s system. It is to the interest of defendant to avoid the contact of its poles and wires with the wires of the complainant, since such contact would be as injurious to the operation of defendant’s business as to that of complainant. Moreover, it reasonably appeal's, that scientific appliances of insulation may and will be provided, to prevent the wires and poles of defendant from ever acting as conductors of electricity from the wires of complainant, except possibly, from accidents arising from wind and storms and electrical disturbances from without — accidents that cannot be-foreseen, calculated upon, nor provided against. But if such disturbances should occur, their results must be temporary and of easy re pair. Without the presence of defendant’s poles and wires, such accidental disturbances are just as liable to befall the poles and wires of complainant. These difficulties, are, however, conjectural, incidental and temporary, if they should come, and are not to be considered as meritorkms grounds for interfering by injunction with, defendant in the erection, maintaining and operating of its telephone system.

The damages that complainant insists will be done to it by defendant are remote, conjectural and imaginary. The defendant company is merely proceeding to erect its system of poles, preparatory to stringing its wires thereon. Its system is not complete, but in the formative state. The tilings complained of are not in existence, but. may be called into existence by threatened acts of defendant, to be done in the lawful exercise of its rights, dependant upon circumstances in the future, as to whether they Will or not operate injuriously, having no other foundation except in the apprehension and fears of complainant. Whether those apprehensions are real or not, the conduct of defendant alone will disclose. It is sufficient to say, having reference to the denials of the answer, that complainant has not presented such a case of pressing necessity, as authorizes interference by injunction.

Much of the answer sets up facts tending to show that the purpose of the complainant is to maintain a monopoly of telephoning in the city, and to exclude defendant therefrom. These matters are not' directly responsive to the averments of the bill, when considered as one for present injunctive relief.

The defendant introduces several affidavits sustaining the denials of the answer. The complainant introduced none to support the averments of the bill. It is urged that these affidavits should not have, been received ov considered by the Chancellor. It is unnecessary to pass upon that question. We have confined our decision, ás the Chancellor might Avell have done, to a consideration of the denials by the answer of the material averments of the bill, and for the purposes in hand, these are sufficient without any resort to the affidavits, no fuller or more satisfactory than the answer itself.

Assuming that the bill has equity, the denials of the answer fully justified the dissolution of the injunction ; but in our opinion, the other ground of the motion for a dissolution of the injunction, namely, that the bill had no equity, was well taken, ancl the decree dissolving the injunction may he well rested on that ground.

Affirmed.