Kruse, J.:
The defendant is a. domestic telephone corporation. For some years it" has maintained a telephone, system in the - village of Carthage. Its lines have been maintained • upon poles in the streets of the village. Another corporation has likewise maintained a telephone . system in the same village, both companies operating to' some extent within the same territory. The defendant desiring to enlarge its .system and extend its lines in the winter of 1904, and prior to ;the 1st day of January, 1905, so it is alleged, applied to the board of trustees of the village for leave, to set poles in the streets of the village and thereupon, on or about the 25th of April, 1905, the board . of trustees passed a resolution which, after reciting that.the defendant telephone company had actually been at work erecting its poles in the streets which had become a nuisance and obnoxious to the people'and injurious-to the use-of the public streets, required the, , telephone company to remove the" poles' thus erected and maintain its lines by means of conduits under the streets' only. The defendant continued its work of erecting the poles notwithstanding, such - requirement of the board of trustees, and thereupon this action':was brought tó restrain the defendant from continuing to do sol A preliminary injunction order was granted by the county judge of Jefferson county, restraining the defendant from so continuing its* work of erecting its poles in the ..streets of the village: during the _ pendency of the action, which order was vacated by the Special ' Term of this court, and from that order this.appeal has been taken.
The defendant challenges the right of the village to require it, in extending its lines in the streets.of the village, tó put them under ground, contending, first, that it has no such power, and, second, -that, if it has such authority, it has exercised the same in an arbitrary and unreasonable manner. We think the plaintiff village has the power and in a proper case ought to exercise it. 1. Xs regards the power. [627] It is true that the defendant derives its right to maintain its lines in the streets of the village directly from the Legislature, and that it may construct and maintain its lines upon, over or 'under the streets and highways. (Trans. Corp. Law [Laws of 1890, chap. 566], § 102.) It is also true that the Legislature may limit, restrict or revoke this right at any time the public interest so requires. (American Rapid Telegraph Co. v. Hess, 125 N. Y. 641 ; People ex rel. New York Elec. Lines Co. v. Squire, 107 id. 593 ; affd., 145 U. S. 175.) It is equally well settled that the Legislature may delegate to municipal corporations the right to reasonably control and regulate the use by transportation companies of the streets and highways of the State for the purpose of constructing and maintaining its lines, and that such right to so use the streets and highways is at all times subject to reasonable supervision and control by the authorities of the municipality-in which these streets and highways are located and subject to its general police power. (New Union Telephone Co. v. Marsh, 96 App. Div. 122 ; Barhite v. Home Telephone Co., 50 id. 25 ; City of Rochester v. Bell Telephone Co., 52 id. 6.) And in this latter case it has been expressly held by this court that, in a proper case, the municipality may require a telephone company to remove its poles and place its lines in a conduit under ground.
It is, however, contended by the defendant that no such power has been delegated by the Legislature to this village. While it is organized under a special charter from the Legislature (Laws of 1869, chap. 834) it also possesses all the powers and is subject to all the liabilities and responsibilities conferred or imposed upon a village incorporated under the Village Law. (Village Law [Laws. of 1897, chap. 414], § 340.) Under its special charter the board of trustees are. not only commissioners of highways in the village (Tit. 5, § 9), but the board is expressly authorized to prevent incumbering the streets, to prevent and remove danger from fire, to protect shade trees, to compel the removal and abatement of nuisances, and generally to make all "rules and regulations not inconsistent with law as may be necessary and proper for carrying into full effect the purposes of the corporation and the powers and privileges -granted by the.charter. (Village charter, tit. 3, § 3, subds. 8, 15, 18, 22, 27, as amd. by Laws of 1896, chap. 252.) And [628] the Village Law enlarges somewhat this power. Stress is.laid upon the fact that subdivision 9 of section 89 of the' Village Law only empowers'the board of trustees of the vilíage to regulate the erection of telegraph, telephone or electric light poles or the stringing of wires-over the streets, and it is contended that this so limits and restricts ' the power of the villages that it may not regulate them otherwise, or, at all events, that they may not require the wires to- be put under ground. We-think this right is not so limited and restricted. Very likely-when this provision became a law the usual method of maintáining these lines was by means of poles and stringing wires over the streets. But independently" of this express provision, and in addition to the specific powers which have'been referred to, authority is conferred in general terms upon the board of • trustees under the.Village Law by section- 141, in the following terms: “The streets and public grounds of a village, except as provided in the. next section (which- refers to bridges under certain circumstances) are under the exclusive control and supervision of the board of trustees.” As has already been stated, the right of transportation companies to use the streets and. highways of the State is not absolute and unconditional, permitting such companies to use the streets and'highways without regard, to the safety, or convenience .of the public, "but it is still subject to the paramount right to use the street for public travel and subject to reasonable regulations, so as not to unnecessarily interfere with the general welfare of the municipality, and under the powers conferred upon this village we think it has authority in a proper case to regulate the use of .its streets by this telephone company, even to the extent of requiring it to place its wires under ground. =
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Kruse, J.:
The defendant is a. domestic telephone corporation. For some years it" has maintained a telephone, system in the - village of Carthage. Its lines have been maintained • upon poles in the streets of the village. Another corporation has likewise maintained a telephone . system in the same village, both companies operating to' some extent within the same territory. The defendant desiring to enlarge its .system and extend its lines in the winter of 1904, and prior to ;the 1st day of January, 1905, so it is alleged, applied to the board of trustees of the village for leave, to set poles in the streets of the village and thereupon, on or about the 25th of April, 1905, the board . of trustees passed a resolution which, after reciting that.the defendant telephone company had actually been at work erecting its poles in the streets which had become a nuisance and obnoxious to the people'and injurious-to the use-of the public streets, required the, , telephone company to remove the" poles' thus erected and maintain its lines by means of conduits under the streets' only. The defendant continued its work of erecting the poles notwithstanding, such - requirement of the board of trustees, and thereupon this action':was brought tó restrain the defendant from continuing to do sol A preliminary injunction order was granted by the county judge of Jefferson county, restraining the defendant from so continuing its* work of erecting its poles in the ..streets of the village: during the _ pendency of the action, which order was vacated by the Special ' Term of this court, and from that order this.appeal has been taken.
The defendant challenges the right of the village to require it, in extending its lines in the streets.of the village, tó put them under ground, contending, first, that it has no such power, and, second, -that, if it has such authority, it has exercised the same in an arbitrary and unreasonable manner. We think the plaintiff village has the power and in a proper case ought to exercise it. 1. Xs regards the power. [627] It is true that the defendant derives its right to maintain its lines in the streets of the village directly from the Legislature, and that it may construct and maintain its lines upon, over or 'under the streets and highways. (Trans. Corp. Law [Laws of 1890, chap. 566], § 102.) It is also true that the Legislature may limit, restrict or revoke this right at any time the public interest so requires. (American Rapid Telegraph Co. v. Hess, 125 N. Y. 641 ; People ex rel. New York Elec. Lines Co. v. Squire, 107 id. 593 ; affd., 145 U. S. 175.) It is equally well settled that the Legislature may delegate to municipal corporations the right to reasonably control and regulate the use by transportation companies of the streets and highways of the State for the purpose of constructing and maintaining its lines, and that such right to so use the streets and highways is at all times subject to reasonable supervision and control by the authorities of the municipality-in which these streets and highways are located and subject to its general police power. (New Union Telephone Co. v. Marsh, 96 App. Div. 122 ; Barhite v. Home Telephone Co., 50 id. 25 ; City of Rochester v. Bell Telephone Co., 52 id. 6.) And in this latter case it has been expressly held by this court that, in a proper case, the municipality may require a telephone company to remove its poles and place its lines in a conduit under ground.
It is, however, contended by the defendant that no such power has been delegated by the Legislature to this village. While it is organized under a special charter from the Legislature (Laws of 1869, chap. 834) it also possesses all the powers and is subject to all the liabilities and responsibilities conferred or imposed upon a village incorporated under the Village Law. (Village Law [Laws. of 1897, chap. 414], § 340.) Under its special charter the board of trustees are. not only commissioners of highways in the village (Tit. 5, § 9), but the board is expressly authorized to prevent incumbering the streets, to prevent and remove danger from fire, to protect shade trees, to compel the removal and abatement of nuisances, and generally to make all "rules and regulations not inconsistent with law as may be necessary and proper for carrying into full effect the purposes of the corporation and the powers and privileges -granted by the.charter. (Village charter, tit. 3, § 3, subds. 8, 15, 18, 22, 27, as amd. by Laws of 1896, chap. 252.) And [628] the Village Law enlarges somewhat this power. Stress is.laid upon the fact that subdivision 9 of section 89 of the' Village Law only empowers'the board of trustees of the vilíage to regulate the erection of telegraph, telephone or electric light poles or the stringing of wires-over the streets, and it is contended that this so limits and restricts ' the power of the villages that it may not regulate them otherwise, or, at all events, that they may not require the wires to- be put under ground. We-think this right is not so limited and restricted. Very likely-when this provision became a law the usual method of maintáining these lines was by means of poles and stringing wires over the streets. But independently" of this express provision, and in addition to the specific powers which have'been referred to, authority is conferred in general terms upon the board of • trustees under the.Village Law by section- 141, in the following terms: “The streets and public grounds of a village, except as provided in the. next section (which- refers to bridges under certain circumstances) are under the exclusive control and supervision of the board of trustees.” As has already been stated, the right of transportation companies to use the streets and. highways of the State is not absolute and unconditional, permitting such companies to use the streets and'highways without regard, to the safety, or convenience .of the public, "but it is still subject to the paramount right to use the street for public travel and subject to reasonable regulations, so as not to unnecessarily interfere with the general welfare of the municipality, and under the powers conferred upon this village we think it has authority in a proper case to regulate the use of .its streets by this telephone company, even to the extent of requiring it to place its wires under ground. =
2. The question whether the requirement of the village authorities was reasonable is one to be determined from all the circumstances, and its determination should' await the trial of the action. The facts are in dispute. If the claim of the village is correct, it cannot be said that the action of its board of trustees was 'arbitrary ph unreasonable. It is contended on its behalf that the'tel'ephone pole's, crossarms and wires will impede travel and prevent the reasonable 'use of the streets by the public, that the network of wires will make it impossible to guard against and' prevent fires, and will. be a menace to-life and property, and that it is entirely feasible and [629] practicable to put these wires underground. Facts are stated in tire affidavits which tend to prove these allegations- and so far as the facts ; are in dispute, the question should be left for determination upon the trial. The mere fact that the rival telephone company has not been required to take down its poles, or that the resolution was not general in its terms, is not a controlling circumstance to show that there has been discrimination. This defendant has not been required to take down poles which were erected prior to the making of the extension or enlargement, and it does not appear that the other company has asked to extend its lines since the board of trustees has determined to require all extensions thereafter made to be put under ground.
In a similar case where the facts were in dispute (City of Rochester v. Bell Telephone Co., supra), where a like question was presented, the court refused to vacate the injunction order, and we think a like disposition should have been made of this injunction order.
The order vacating and setting aside the injunction order should be reversed, with ten dollars costs and disbursements, and the injunction order reinstated.
All concurred, except McLennan, P. J., and Nash, J., who dissented in'an opinion by Nash, J. -