Chesapeake & Potomac Telephone Co. v. Tyson

153 A. 271, 160 Md. 298, 1931 Md. LEXIS 77

• Court: Court of Appeals of Maryland
• Decided: January 16, 1931
• Docket: [Nos. 76, 77, October Term, 1930.]
• Status: Published

Opinions

Urner, J.,

delivered the opinion of the Court.

In 1918 the defendants, in consideration of fifty dollars, granted to the Chesapeake & Potomac Telephone Company “the right to construct, operate, and maintain its lines of telephone and telegraph, including the necessary poles, cables, wires and fixtures upon and along the property” of the defendants in the first district of Harford County, “said poles to be located only upon and along the roads, streets or highways adjoining the said property; to permit the attachment of the wires of any other company or person; to cut down or trim any trees along said lines except between poles thirty (30) to thirty-six (36) both inclusive; so as to keep the wires cleared at least five feet; to erect and set the necessary guy and brace poles and anchors, and attach thereto and to trees the necessary guy wires, * * *” it being “expressly understood and agreed that the cross-arms, cables, wires, fixtures, anchors and anchor guys will not extend any further over the private property of said grantor than at present, approximately eight to ten feet.” The conveyance included “the further right to trim all trees at least two feet between poles thirty (30) to thirty-six (36), both inclusive,” and concluded as follows: “This grant covers sixty (60) line poles which are now or to be located abutting our property on Bel Air-Van Bibber Hoad and on Van Bibber-Edgewood Hoad.”

In 1930 the State Hoads Commission obtained from the defendants an easement in additional land required for the purpose of widening and realigning the Bel Air-Van Bibber Hoad. The agreement conferring the new easement provided that “no telephone, gas or electric poles, conduits or wires shall be allowed in, through or over the right of way hereby granted. This easement being granted for road purposes only.” In consequence of the realignment and improvement of the road, it became necessary for the telephone company to relocate seven of the po'les erected under its grant from the defendants in 1918. Three of the removals were to positions on ground within the limits of the additional highway easement, and four of the relocations were on the defendants’ abutting land beyond the road area as widened. In order to prevent interference _ by the defendants with the work of moving the poles, a preliminary injunction was procured by the telephone company on a bill in equity which the final decree dismissed. A similar disposition was made of a cross-bill, filed by the defendants for an injunction to enforce their opposition to the erection and maintenance of the telephone poles at the new locations described. Both the plaintiff corporation and the defendants have appealed from the decree.

The telephone company’s bill was filed upon the assumption that its poles were being moved to points within the outlines of the additional easement secured by the State Roads Commission, but the actual result of the removal operations, according to the undisputed proof, was the erection of four poles on property of the defendants which is not affected by either the original or the supplemental road servitude. It is perfectly clear that the telephone company is not entitled, and its counsel at the trial below stated that it does not propose, to perpetuate that trespass. The preliminary injunction, as prayed for and issued, did not in terms sanction such an encroachment on the defendants’ land, hut it was a grievance which could properly have been redressed under the allegations of the cross-bill. The right of an action at law for damages does not preclude relief to the defendants, by way of mandatory injunction, from the telephone company’s continued occupation of their land for its line without legal or contractual authority. Potomac Elec. Power Co. v. Wall, 153 Md. 229, 137 A. 899.

The principal question in the case is whether the easement granted by the defendants to the telephone company in 1918 extends fo the additional land acquired from them by tho State Roads Commission for the widening and straightening of the road in 1930. Unless the conveyance to the company was intended to apply to the use, for its telephone line, of any land of tho defendants on which the existing highway might thereafter be relocated, the right to snch an extension of the user must be denied. As owners of the fee in the'roadway, the defendants have a valid ground of objection to the imposition upon the land of any servitude not resulting from agreement, prescription, or condemnation. The highway easement does not. include the right of user by a public service corporation for its independent purposes. American Tel. & Tel. Co. v. Pearce., 71 Md. 535, 18 A. 910; Chesapeake & Pot. Tel. Co. v. Mackenzie, 74 Md. 36, 21 A. 690; Ballimore County Water Co. v. Debreuil, 105 Md. 424, 66 A. 439 ; Maryland Tel. Co. v. Ruth, 106 Md. 644, 68 A. 358; Potomac Elec. Power Co. v. Wall, supra. The right here asserted by tho telephone company therefore depends upon the construction and effect of the conveyance of 1918, which is the exclusive source of its authority to use any of the defendants’ land.

The deed from the defendants to the telephone company granted an easement for the construction and maintenance of sixty poles, to support the necessary wires and fixtures, upon an existing thoroughfare. It was stipulated that the cross-arms, anchors, guys, and other equipment of the line should not extend further than “at present” over the private property of the grantors. The pole locations now in controversy are not within the limits of the road as it existed in 1918, and the cross-arms, of course, extend further over the private land of the defendants than when the easement was created. While the deviation from the original road space was not great, yet it actually transgressed the limitation which the grant prescribed. The explicit terms of the deed preclude the theory'that the easement was intended to be exercisable over any future course to which the road might be changed. If a slight departure from its terms were held to be permissible, it would be difficult to place a restriction upon further alterations of its scope, against the protest of the landowners, and the measure of their right to object to such extensions would be rendered seriously indefinite.

It was argued that, as the defendants, by granting to-the State Roads Commission a right of way over the additional ground required for the realignment and improvement of the highway, co-operated in the changes which necessitated the removal of some of the telephone company’s poles to points outside of the original road area, they are estopped to complain of those relocations. The conveyance, by agreement, of the new road easement, was an alternative to its acquisition under the power of eminent domain, and could not, in our opinion, be justly given the estoppel effect for which the appellant contends.

The removal of the poles erected in positions beyond the lines of those originally occupied under the grant of 1918 should be required by decree under the defendants’ cross-bill, and the case will be remanded for that purpose. If the immediate enforcement of such a decree should’ be proved to the lower court to be unduly injurious to those utilizing the appellant’s telephone service, a reasonable opportunity may be given by a suitable stay,- to secure the requisite further easement from the defendants by condemnation or purchase.

Decree affirmed in parí and reversed in pari, and cause remanded for a decree in com formity with this opinion, the costs to he paid hy the appellant corporation.