Certified question from the Court of Civil Appeals for the Fifth District, as follows:
"In the above entitled cause, which is pending on motion for rehearing, the following issues of law arise, which this court deems it advisable to present to the Supreme Court of the State of Texas for adjudication.
"Nature of Suit. — This suit was instituted by appellee to recover of appellant damages occasioned him by the construction of appellant's telegraph and telephone lines over and along Franklin and Ivy Streets, in the city of Hillsboro, on which appellee's homestead is situated, and also prayed for a mandatory injunction requiring the *Page 132 removal of certain structures. The appellant answered by general and special exceptions, general denial and specially, in effect, that it is a foreign corporation, and holds a permit from the State of Texas to do business therein; that in conformity with said permit and with the authority of said city of Hillsboro, it constructed its lines along said streets and the sidewalk thereof and operates a local and long distance exchange in said city for telegraph and telephone purposes; that said business is conducted as a public service and its poles, wires, etc., are so placed along said streets so as not to discommode the public in the use of said streets, and that they were properly and skillfully erected and maintained; that said line was constructed before the trees were planted on the sidewalk adjoining appellee's premises and if there is any interference with said trees it accrues by reason of the growth of same, etc.
"Statement — Appellant was a foreign corporation and held a permit from the State of Texas to construct and operate a telegraph and telephone line in said State. Under said permit and with the permission of the city council of the city of Hillsboro, Texas, it had constructed and was operating such a line in said city for public use and had established local and long distance exchanges therein. The construction of said line in said city, as far as relates to this case, consisted of large and tall poles set at intervals along the sidewalks in the streets, some of which were stayed by guy posts and wires. On the poles were placed crossbeams upon which were strung wires and cables. Part of this structure was placed on the sidewalks adjoining appellee's lot and other parts on the sidewalks across the street just opposite said lot. There were no more poles set nor wires strung in the construction of the line than was necessary for the operation of said business. On said lot was a residence and appellee and family occupied the same as a homestead, and it was not shown that said lot had any value for other purposes than that of homestead. That said construction was unsightly and interfered with the view from the residence, and the line ran through and injured the branches of his trees growing on the sidewalk planted for ornamental purposes. The line was constructed before plaintiff acquired the lot and the wires were placed above the trees, but the trees have since grown and the branches thereof come in contact with said wires. The testimony showed the property to be damaged by the construction and maintaining of said line to the amount of the sum found by the jury. The court charged the jury the measure of damages, in effect, to be the difference in the value of the property just before the act of defendant, and its value as affected by said structure. It was shown that the wires could be placed ten or fifteen feet higher on the poles then erected which would be above the trees and not interfere therewith. The appellant, at the instance of appellee, before the institution of this suit, promised to raise said wires above the trees, but failed to comply with said promise.
"On the issue submitted to the jury whether or not it was necessary for the cables to remain in the boughs of the trees, they found it was not. *Page 133
"Question 1. Is the appellant such a public service corporation as is exempt from liability for damages for the construction of its line under a permit from the State and city under the facts stated?
"Question 2. Does the unsightliness of the structure and the interfering with the occupants' view entitle the plaintiff to recover damages where such depreciates the value of the property?
"Question 3. Has the plaintiff the right to grow trees on his sidewalk and is appellant liable for damages to same as shown by the foregoing?
"Question 4. Was appellee entitled to the mandatory writ of injunction under the foregoing circumstances?"
Answer to question 1: The telephone company was not exempted from the payment of damages caused to abutting property by the construction of its lines. The structure of the telephone company is an additional burden upon the street. Telegraph Cable Co. v. Eaton, 170 Ill. 517; 62 Am. St. R., 390; Telephone Co. v. Barnett, 107 Ill. 507; 47 Am. R., 453; 27 Am. Eng. Enc., 1008, note 12, id., p. 150, note 4. We could cite many additional authorities, but it is unnecessary to do so.
Answer to question 2: The telephone line may have been constructed by authority of law and with due care, yet if its presence on the street caused or contributed to a depreciation of the "market value" of abutting property, the company is liable for such damages.
Answer to question 3: The plaintiff had the right to grow trees upon the sidewalk, and if the trees were damaged by the telephone wires, which contributed to a depreciation of the market value of the property, such injury should be considered as if caused by the structure. This being an action for depreciation in the market value of the property, the injury to the trees can be considered only as it affects such market value. 27 Am. Eng Ency., 150; Bell Tel. v. Francis, 55 Am. St., 935, 109 Ala. 224; Evans v. Gas Co., 148 N.Y. 112, 51 Am. St., 681.
Answer to question 4: This question asks if appellee was entitled to "the mandatory writ of injunction," that is the writ granted, but the statement does not disclose what the writ granted commanded the telephone company to do, therefore, we can not ascertain whether the writ was properly issued.