Fitzsimmons Telephone Co. v. City of Cincinnati

Hamilton County Probate Court

Fitzsimmons Telephone Co. v. City of Cincinnati

2 Ohio N.P. (n.s.) 51, 1904 Ohio Misc. LEXIS 288

DecidedApril 2, 1904

StatusPublished

This text of 2 Ohio N.P. (n.s.) 51 (Fitzsimmons Telephone Co. v. City of Cincinnati) is published on Counsel Stack Legal Research, covering Hamilton County Probate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzsimmons Telephone Co. v. City of Cincinnati, 2 Ohio N.P. (n.s.) 51, 1904 Ohio Misc. LEXIS 288 (Ohio Super. Ct. 1904).

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Opinion

We must not forget that it is not the right to use the streets that is made the subject of agreement beween the companies and the municipal authorities or of determination of the court; that right is granted directly by the Legislature; it is only the mode of such use that becomes the subject of agreement or judicial determination.

The petitions are based on Section 3461, which reads as follows:

“When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or othefi public use, within the limits of any- city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal author[52]*52ities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley or public way, so as not to incommode the public in the use of the same, but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley or public way beyond what may be necessary to restore the pavement to its former state of usefulness. ’ ’

Theodore Horstman, Pogue & Pogue, C. B. Matthews and Bowel Crosley, for plaintiffs in error. Charles J. Hunt, City Solicitor,- for defendant in error.

If the municipal authorities and the telegraph or telephone companies can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court court, in a proceeding instituted for the purpose, shall direct in what mode such telegraph or telephone lines shall be constructed along such street, alley, 'or public way, so as not to incommode the public in the use of the same.

What is meant by along such street, alley or public way? The first sentence of the section explains the clause “such street, alley, or public way;” along any street, alley or public way to the easements of which lands authorized to be appropriated are subjected. It means along every and all streets of the city.

As soon as land, by dedication or appropriation or by any other method, becomes a street, alley or public way, it is subjected to the easement; and the court does not find it necessary for the petitioners to set out what streets, alleys or public ways they propose to occupy.

The two other grounds for the motion can not by the court be considered as well taken; it is an impossibility for a company to give the exact location of all proposed poles, wires, conduits and other structures; neither can the company set forth the character of the poles or wires to be erected, or of the conduits and other structures proposed to be built; the court has to order the company in what mode they shall construct their lines, and the court in specifying will prescribe the character of their structures.

The motions are hereby overruled.

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We must not forget that it is not the right to use the streets that is made the subject of agreement beween the companies and the municipal authorities or of determination of the court; that right is granted directly by the Legislature; it is only the mode of such use that becomes the subject of agreement or judicial determination.

The petitions are based on Section 3461, which reads as follows:

“When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or othefi public use, within the limits of any- city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they can not agree, or the municipal author[52]*52ities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley or public way, so as not to incommode the public in the use of the same, but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley or public way beyond what may be necessary to restore the pavement to its former state of usefulness. ’ ’

Theodore Horstman, Pogue & Pogue, C. B. Matthews and Bowel Crosley, for plaintiffs in error. Charles J. Hunt, City Solicitor,- for defendant in error.

If the municipal authorities and the telegraph or telephone companies can not agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court court, in a proceeding instituted for the purpose, shall direct in what mode such telegraph or telephone lines shall be constructed along such street, alley, 'or public way, so as not to incommode the public in the use of the same.

What is meant by along such street, alley or public way? The first sentence of the section explains the clause “such street, alley, or public way;” along any street, alley or public way to the easements of which lands authorized to be appropriated are subjected. It means along every and all streets of the city.

As soon as land, by dedication or appropriation or by any other method, becomes a street, alley or public way, it is subjected to the easement; and the court does not find it necessary for the petitioners to set out what streets, alleys or public ways they propose to occupy.

The two other grounds for the motion can not by the court be considered as well taken; it is an impossibility for a company to give the exact location of all proposed poles, wires, conduits and other structures; neither can the company set forth the character of the poles or wires to be erected, or of the conduits and other structures proposed to be built; the court has to order the company in what mode they shall construct their lines, and the court in specifying will prescribe the character of their structures.

The motions are hereby overruled.

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2 Ohio N.P. (n.s.) 51, 1904 Ohio Misc. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzsimmons-telephone-co-v-city-of-cincinnati-ohprobcthamilto-1904.