Point Pleasant Electric Light & Power Co. v. Borough of Bayhead

49 A. 1108, 62 N.J. Eq. 296, 1901 N.J. Ch. LEXIS 69

• Court: New Jersey Court of Chancery
• Decided: July 29, 1901
• Status: Published

Opinion

Gruy, Y. C.

There is very little, if any, dispute between the affidavits annexed to the bill of complaint and those appended to the answer as to the facts in this ease. The argument made was almost wholly upon questions of law.

The complainant company claims that, under the statute of April 21st, 1896 (P. L. of 1896 p. 322), it has received directly from the legislature full power to use the highways of the state for the purpose of erecting poles to sustain wires, &c., upon first obtaining, the consent, in writing, of the owners of the soil. That statute enacts that

“any corporation organized * * * by virtue of the act entitled * * * ‘An act concerning corporations,’ for the purpose of constructing, maintaining and operating works for the supply and distribution of electricity for electric lights, * * ::= shall have full power to use the public * * * highways * * * in this state for the purposes of erecting posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil; provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the street in which the same may be placed and the manner of placing the same,” &c.

In the case of Suburban Electric Light Co. v. Inhabitants of East Orange, 14 Dick. Ch. Rep. 563, a bill was filed seeking to enjoin the township of East Orange from cutting down the light company’s wires attached to poles of a telephone company in a street of that township. The above statute was cited as the authority of the light company to string its wires on the telephone company’s poles. Both in this court and in the court of appeals the case was dealt with as involving the right of the electric light company to string wires in the public streets. An injunction was allowed. An appeal was taken, and the court of appeals sustained the decree for injunction, upon the single ground that, upon the true construction of the act of 1896, the power conferred by it upon electric light companies “was not limited by any requirement that permission should be first obtained from a township within which the power was exercised.” The opinion declares that the legislature, when it prescribed that in “cities and towns no poles should be erected without first obtaining from the municipality a designation of streets, &c., and the manner of placing, intended to require the permission to be obtained only from cities and towns eo nomine,” and concluded with this summation of the whole case: “The result is that the respondent [the electric light company] was possessed of sufficient authority to string and maintain the wires in question in the public streets, and whether it originally acquired or afterwards retained the permission of the township authorities was immaterial.”

The defendants (the borough of Bayhead and its officers) do not deny that the statute of 1896 vests in the complainant company the power to erect poles to sustain wires in the public streets, nor does it claim that a borough is, within the proviso of that act, a city or town in which permission to erect poles shall first be obtained. Their contention is that the Borough act of 1897 authorizes the council of the borough to “regulate the use” of the streets and roads of the borough and to prescribe the manner in which corporations shall exercise any privilege granted to them in the use of any street. They insist that the pre-existing right of the complainant company to use the streets of the borough can be exercised only after the borough council has prescribed the manner in which the complainant shall exercise it.

There is no claim that the wires of the complainant company, as they cross the borough streets, are obstructive of passage in the street, nor that they are in any other way a nuisance. The defendants stand upon their assertion of a right to prevent the stringing of any wires across the borough streets until the .borough council shall have first prescribed the manner in which the complainant company should exercise such a privilege. The Borough act of 1897, which is invoked to sustain this claim (P. L. of 1897 p. 296 § 28), under the heading “Powers of Council,” declares:

“The council of said borough shall have power: 1. To pass, alter or repeal ordinances to take effect within the limits of the said borough for the following purpose: * * * to establish * * * the boundaries of the streets and roads in said borough and to regulate the use thereof; to prevent and remove all obstructions, encroachments, intrusion and nuisances in and upon any street; to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of any street.”

Whether the stringing of a single wire across a public highway, at such a height as not in any way to interfere with any use of the street, is the exercise of a street privilege (see Brigantine v. Holland Trust Co., 35 Atl. Rep. 345), need not be here determined. If it is not a street privilege, the defendant borough has no control over the matter. If it is a street privilege, then the defendant borough has, by the terms of the Borough act of 1891/, a right to prescribe the manner in which it shall be exercised.

Assuming that the act done by .the complainant company in stringing its wire across the .street of Bayhead was the exercise of a street privilege, must the complainant company await the previous action of the borough council before exercising it ?

The statute of 1896 operated as a direct grant of power to the complainant company to do the act in question. The statutory grant is so expressed that the privilege given may be completely used by the complainant company, without further definition as to the manner or locality of its exercise. The statute conclusively deals with the obligation of the companies to whom the powers are given to obtain from the local authorities, before using them, a designation of place and manner of use. In incorporated cities and towns previous designation of place and manner of using is expressly required. In other places, such as townships and boroughs, there is no such requirement. In the latter municipalities the powers (given in terms which make them capable of complete exercise by the receiving corporations) may be used without first obtaining such designation from the local authorities. The court of appeals seems to have finally settled this when it declared that, under the terms of the statute of 18.96, an electric light company is “possessed of sufficient authority to string and maintain the wires in question in the public streets, and whether it originally

obtained or afterwards retained the permission of the town authorities is immaterial.” Suburban Electric Co. v. East Orange, 14 Dick. Ch. Rep. 563.

The Borough act of 1897 does not require that the exercise of street privileges by corporations having such powers shall await the action of the borough authorities. Had the legislature intended this, it could readily have expressed it in the statutory grant of power in the act of 1896. The legislature then considered and dealt with the subject, prescribing certain classes of municipalities within which designations of place and manner for the use of the powers must first be obtained, and leaving them to be exercised in all other municipalities without such previous designation. A contrary purpose should not be ascribed to the legislature by mere construction of another statute, which may have it's full expressed effect without such incongruous interpretation.

It must also be noted that the Borough act directs that the authority there given shall be exercised by ordinance. Here is an original statutory grant of power, coupled with the prescription of a mode in which it shall be exercised. In such cases the observance of the prescribed mode is necessary to the exercise of the power. The authority given to boroughs by the act of 1897 is not self-operating to prevent the use of street privileges until action be taken. The terms used show that they are regulative of privileges already given. Hntil regulative action be taken in the mode prescribed by the Borough act, any existing street privilege, capable of complete exercise, may be used by any party having the right to use it. In this case there is no pretence that the borough of Bayhead has, at any time, passed any ordinance touching the exercise of such street privileges. The borough is here, however, by answer and proofs, insisting that its officers may, by physical force, prevent the exercise of street privileges, without any ordinance on the subject.

In American Mutual Telegraph Co. v. Town of Harrison, 4 Stew. Eq. 631, the poles of a telegraph company were erected outside the lines of the street on private property. The wires overhung the street at a height of twenty-five feet, and were not an obstruction to the use of it. The town authorities threatened to cut them down—first, because the statute under which the defendant company was organized gave it the right to use public highways for erecting poles, upon first obtaining consent of owners of the soil and a designation of streets and manner of placing the same, and no such designation had been obtained; and secondly, because the statute declared that the use of the streets by companies organized under it should be subject to such regulations and restrictions as might he imposed by the municipal authorities. Vice-Chancellor Van Fleet held the provision as to first obtaining designation from the town authorities of streets and manner of placing poles to be inapplicable to the ease before him, because the complainant’s poles were, in fact, erected on private property, and not in the public highway; and the second justification to be of no force to prevent the stringing of wires in public streets, because the town authorities had never adopted any regulations or restrictions as to the use of the streets. He declared that when the municipality had, by appropriate proceedings, prescribed regulations, the complainants would be obliged to conform to them, but in the meantime they cannot compel the complainants to desist from further construction of their work; that the complainants had done nothing but what they had an unquestionable legal right to do, and that the defendants should be enjoined from cutting the wires or otherwise interfering with them. In the case of Inhabitants of Summit v. New York and New Jersey Telegraph Co., 12 Dick. Ch. Rep. 126, this case was declared to be controlling upon the point whether, in the absence of a regulation by the municipality, a telegraph company has the right to string wires across a street, at a proper elevation, from poles placed outside the street.

The defendants contend that the case of Benton v. Elizabeth, 32 Vr. 415 (Supreme Court), must be accepted as controlling the matter now under consideration, and to prescribe thát the admitted pre-existing right of the electric light company to the use of the borough streets cannot be-exercised until the borough council shall first have designated the place and manner of use. In that case an oil piping company was assumed to have the power to lay pipes for the transmission of oil. The charter of the city of Elizabeth gave its council power, by ordinance, to prescribe tlie manner in which the corporation should exercise any privilege granted to them in using the city streets. The city council did pass such an ordinance. An owner adjoining the proposed pipe line took a certiorari removing the ordinance. In discussing the questions involved the learned judge who delivered the opinion suggested, obiter, that the right of a party having a privilege to use a street is imperfect until the council indicates in what manner it may be exercised; that the preexisting right is one to be exercised only as the council permits. The learned judge does not, in terms, declare that a legislative grant of power, capable of complete exercise'by the recipient of the power, which is subject to regulation by the designation of place and manner of using by local authorities, cannot be used until the latter shall first have designated. The learned judge probably referred to such legislative grants of power as, by the express terms of the statute, depend for their exercise upon the previous action of the local council. Benton v. Elizabeth, 32 Vr. 694, was taken to the court of errors and was there (in 1898) affirmed, upon the opinion delivered in the supreme court. If that case is to be considered as an authoritative declaration of a general principle that in any municipality having power to regulate, the use of streets there can be no exercise of street privileges received by direct legislative grant until the local authorities have first designated the place and manner of their exercise, then that decision is certainly antagonized by that delivered by the court of appeals (in 1899) in Suburban Electric Light Co. v. East Orange, ubi supra, when, construing the very statute in question in this cause (the act of 1896), it declared that, under that act, electric light companies (outside of cities and towns) have sufficient authority to string wires in the streets, and that the permission of the town authorities is immaterial.

The case of Meyers v. Hudson County Electric Co., 34 Vr. 573 (Court of Errors and Appeals), is also cited as declaring that the designation of streets and manner of placing by the Ideal authorities must first be made. That case is inapplicable to the cause sub judice, for the reason that the matter there decided was the validity of an ordinance of the city of Bayonne. The court declared that the permission of the city authorities was a prerequisite to the right of the electric light company to enter the street. The statute of 1896, in terms, so declares as to cities and towns. The question in the present case is whether borough authorities, without such legislative declaration requiring their previous action, may, under a general power to regulate streets and to designate the manner of using street privileges, exclude the corporation having defined street privileges from using them until such designation is made.

The right of the complainant company to string its wires in the manner stated in its bill in the borough of Bayhead must be held to be established.

The defendants contend that the threatened injury is limited to the cutting of but a single wire, serving light to the Grenville Arms Hotel, and that this is not such an irreparable injury as to justify the issuing of an injunction. But this is not a fair' statement of the controversy. The pleadings and proofs show that the complainant company had a right to string wires in the streets of the borough of Ba3>-head, and was proceeding to exercise it, when the individual defendants, in behalf of that borough, which has since adopted their actions as its own, denying the complainant’s right, cut the complainant’s wires in the streets of the borough and destro3red its appliances. The defendant borough asserts, by its answer, its right to do this, and it is entirely apparent that it will do it, unless restrained by this court. The defendant’s contention is not limited to an assertion of its right and purpose to cut the Grenville Arms Hotel wire, but to cut any wires which the complainant may string in the streets of the borough of Ba3diead. That is its claim in its answer; that is the argument of its counsel. For such threatened continuing and repeated injuries no adequate damages can be recovered at law.

An order for an injunction will be advised according to the views above expressed.