This is an action to recover damages for personal injury alleged to have been sustained on the 29th day of June, 1907, by plaintiff’s being caught, entangled and tripped by a wire attached to a telephone pole, which pole *582was lying along the sidewalk on Thirteenth street between. Grove and Front streets, Boise City.
The answer denied the ownership of both the pole and the wire, denied having taken down said pole and placed it along said sidewalk, denied all responsibility for said pole and wire being on the sidewalk, and averred that the pole was erected long prior to the existence of the defendant corporation, and was, in the month of February, 1907, used, employed and occupied by the Bell Telephone Co. with its wires and lines, and that thereafter the appellant company discontinued the use and occupancy of said pole, and that the same was by the owner thereof, or by persons unknown to the appellant, taken down and placed as alleged in the complaint. The answer also alleges contributory negligence on the part of the plaintiff.
Upon the issues thus made, the action was tried by a jury and verdict rendered and judgment entered for the plaintiff in the sum of $5,500. Thereafter a motion for a new trial was denied, and this appeal is from both the judgment and order denying the new trial.
Many errors are assigned, among them the insufficiency of the evidence to support the verdict.
It appears from the evidence that the pole in question was an old pole which had been erected and used long before the organization of the appellant corporation by persons unknown to the appellant; that in 1901 or 1902, a drop was run from the lines of the appellant company to the pole in question; that sometime thereafter another drop was attached to said pole, running from the northwest corner of Front street to the pole, thence northeast to the northwest corner of Thirteenth and Grove streets, to a pole, and thence to Dr. Noble’s veterinary barn, which two wires were the only wires of the appellant company attached to this pole during said time. In the spring of 1906, the Noble wires were cut off at the comer of Thirteenth and.,Grove, and Dr. Noble was given service from Main street; that about November, 1906, the dead Noble drops on this pole were taken down, rolled up and taken away and this pole was stripped entirely clean of *583any and all wires belonging to the appellant corporation. The record fails to show to whom said tramp or derelict pole belonged or who erected it. The evidence shows that the appellant company attached wires to said pole and used it from about 1902 to 1906. At that time they erected a new pole about eighteen inches from the pole in question and removed their wires from the old pole to the new. During all of the time that said wires were attached to said old pole, the appellant was a mere trespasser thereon and neither owned nor claimed to own said pole. In January, 1907, the Bell Telephone Company attached drops to this pole, which were the only wires on it. At the time of the trial, the dead drops of the Bell Telephone Co. from the second house north were running to the new pole belonging to the appellant company and were fastened with knobs to the new pole at a point about the height of the old pole, and such drops had been so situated for more than a year. It also appears that at the time the pole in question was taken down, the Bell Telephone Co. was taking down poles in this alley, and that the defendant never did take down poles in said alley. Said old pole was taken down about March or April by some person or persons unknown to the appellant company, and laid along the sidewalk, where it laid until said accident occurred.
The question is directly presented as to whether, under the facts above stated, the appellant company is liable in this action. Did the fact of its having attached wires to said old pole and permitted them to remain there about four years make it liable for any damage that might result from some one, unknown to it, taking the pole down and placing it along the sidewalk, after it had abandoned the pole? Did it, by using the pole as above stated, become the owner thereof or make itself responsible for the taking down and removal of the pole?
It is clear from the evidence that the pole was not the property of the defendant unless it became so by its user, and if it ‘could acquire any kind of ownership by user merely, it might lose such ownership by abandonment, as it certainly did. If the injury had occurred from the negligence of the *584defendant while it was using the pole, there is ample authority for holding the defendant liable; but when the defendant ceased to use the pole and left it clean of its wires, in a safe position, and the pole was thereafter occupied by another company for like purposes, the law will not hold the defendant liable where an injury is sustained resulting from the taking down of said pole and placing it along the sidewalk by persons unknown to the appellant and without its knowledge or consent. In such case, the appellant lost its entire title to said pole, if it had any, when it abandoned it with a concurrence of intent and relinquishment. (Judson v. Malloy, 40 Cal. 299; 1 Cyc., pp. 3-7.) Upon abandonment, the prior owner’s right terminated, and the property is to him as if he had never owned it, and the first comer may appropriate it.
Under the evidence the question of use, occupancy or ownership as between the defendant and the Bell Telephone Co. was an issue of fact solely for the jury, and the question arose as to which last used the pole and who was, at the date of the injury, responsible for it.
It appears from the evidence that the appellant company erected a new pole only a few inches from the pole in question and did not remove the latter. This is a significant fact, ■is the custom in such cases is either to cut down or remove the old pole if it belongs to the party erecting the new one. This would indicate that the appellant company had no right to or ownership in said pole. The evidence shows that appellant did not own said pole and was not liable for taking it down and placing it along the sidewalk. If the appellant company had had any right in said pole, it abandoned it by erecting a new pole close to the old one and stripping it of all wire and attaching its wires to the new pole, and a subsequent taker, appropriator or user of said pole may have become responsible and liable for all that is vested in use, occupancy or ownership. (See 6 Thompson on Negligence, sec. 7434.)
We can arrive at but one conclusion after a careful inspection of the evidence, and that is that it is not sufficient to support the verdict. All of the acts of the appellant com*585pany as shown by the evidence, taken together, in regard to the said pole, are not sufficient to make it liable to the plaintiff for the injuries sustained by her. The wire that caused the injury was not the wire of the appellant company, as the evidence 3learly shows that when it abandoned the old pole, it stripped it clean of wire.
A number of objections were made in regard to the admission and rejection of certain evidence. It was clearly error for the court to admit any evidence of the Bell Telephone Co. with reference to informing its main office of accidents or damage claims. Said evidence should have been rejected. The evidence shows that the pole in question was not claimed by the appellant, and it also shows the acts done by appellant in connecting its wires to said pole and thereafter stripping said pole of its wires.
The striking out of the testimony of the witness Thrailkill, who testified that said old pole did not belong to the appellant company, was error. While that evidence is a conclusion, we think it was proper to go to the jury, and the witness might have been cross-examined as to the facts on which he based that conclusion. Certain evidence had been introduced in regard to said pole not belonging to the appellant company, to the effect that they did not erect it, never claimed it, had used it only temporarily, and when through with it, stripped it of all wire and left it as they found it. However, if this were the only error in the record, we would not hold it sufficient to warrant a reversal of the case.
The evidence in regard to an action pending against the Bell Telephone Co. should have been rejected, and the court erred in admitting it. The court did not err in refusing defendant’s request to have the premises inspected by the jury. The testimony in regard to the conversation between the daughter of the plaintiff and another witness had with the attorney for the appellant company should not have been admitted. Neither party should have been permitted to introduce any testimony in regard to that conversation. The testimony in regard thereto is immaterial applied to the real merits of this case.
*586It will not be necessary for us to pass upon certain other errors assigned, as the matters involved therein will not arise on a retrial of the case.
The giving of instructions Nos. 2, 3, 4, 6 and 8, given by the court on its own motion, is assigned as error. While some parts of each of said instructions state correct rules of law, they are not applicable to the facts of the case as developed by the evidence, and should not have been given. Instructions Nos. 2, 10 and 13 requested by the defendant and refused by the court should have been given.
For the foregoing reasons the judgment must be reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion. Costs awarded to the appellant.
Ailshie, Presiding J., concurs.