Mountain States Telephone & Telegraph Co. v. Kelly

Idaho Supreme Court

Mountain States Telephone & Telegraph Co. v. Kelly

459 P.2d 349, 93 Idaho 226, 1969 Ida. LEXIS 289

CourtIdaho Supreme Court

DecidedSeptember 29, 1969

Docket10361

StatusPublished

Cited by4 cases

This text of 459 P.2d 349 (Mountain States Telephone & Telegraph Co. v. Kelly) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mountain States Telephone & Telegraph Co. v. Kelly, 459 P.2d 349, 93 Idaho 226, 1969 Ida. LEXIS 289 (Idaho 1969).

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Opinion

PER CURIAM.

Appellants, James P. Kelly and Ynes Kelly, are the owners of real property situated in Jerome County, Idaho. Prior to their acquisition of the property, the State of Idaho secured a highway right-of-way across the property from the federal government in conformance with the Federal Aid Plighway Act of 1921 (42 Stat. 212). Also prior to acquisition of the property by the Kellys, Plaintiff-respondent, telephone company, placed and thereafter maintained telephone poles and lines upon and along said highway right-of-way. Plaintiff-respondent sought to remove its telephone facilities and defendant-appellants prevented the removal claiming ownership of the facilities and that they were entitled to delinquent rental for the use of the facilities. Plaintiff-respondent brought action to enjoin defendant-appellants from hindering its efforts to remove the facilities. Plaintiff sought and gained summary judgment in the district court and defendants appeal.

This Court in State ex rel. Burns v. Kelly, 89 Idaho 139, 403 P.2d 566 (1965), held that the portion of highway right-of-way in controversy here not used for actual road purposes is not forfeited to the owner of the fee title. The telephone company had the clear legal right to place and maintain their facilities upon the highway right-of-way, Idaho Constitution, Article 11, § 13, § 62-701, I.C., and such facilities impose no additional burden for which the owner of the fee is entitled to compensation. United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 63 S.Ct. 534, 87 L.Ed. 716 (1943).

The entry of summary judgment by the district court is affirmed. Costs to respondent.

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PER CURIAM.

Appellants, James P. Kelly and Ynes Kelly, are the owners of real property situated in Jerome County, Idaho. Prior to their acquisition of the property, the State of Idaho secured a highway right-of-way across the property from the federal government in conformance with the Federal Aid Plighway Act of 1921 (42 Stat. 212). Also prior to acquisition of the property by the Kellys, Plaintiff-respondent, telephone company, placed and thereafter maintained telephone poles and lines upon and along said highway right-of-way. Plaintiff-respondent sought to remove its telephone facilities and defendant-appellants prevented the removal claiming ownership of the facilities and that they were entitled to delinquent rental for the use of the facilities. Plaintiff-respondent brought action to enjoin defendant-appellants from hindering its efforts to remove the facilities. Plaintiff sought and gained summary judgment in the district court and defendants appeal.

This Court in State ex rel. Burns v. Kelly, 89 Idaho 139, 403 P.2d 566 (1965), held that the portion of highway right-of-way in controversy here not used for actual road purposes is not forfeited to the owner of the fee title. The telephone company had the clear legal right to place and maintain their facilities upon the highway right-of-way, Idaho Constitution, Article 11, § 13, § 62-701, I.C., and such facilities impose no additional burden for which the owner of the fee is entitled to compensation. United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 63 S.Ct. 534, 87 L.Ed. 716 (1943).

The entry of summary judgment by the district court is affirmed. Costs to respondent.

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459 P.2d 349, 93 Idaho 226, 1969 Ida. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mountain-states-telephone-telegraph-co-v-kelly-idaho-1969.

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