City of Utica v. Utica Telephone Co.

Adams, J.

(dissenting):

I find myself unable to concur in the views expressed in the prevailing opinion in this case.

While it is doubtless true that, by the provisions of the “ Transportation Corporations Law,” the defendant did not acquire any interest in the streets of the city of Utica, yet I think it equally clear that the Legislature has granted to the defendant the use of such streets for the purpose of placing therein the necessary appliances for the proper conduct of its business as a telephone company, and that their use for such a purpose is not inconsistent with that for which they are primarily designed.

I am also quite ready to concede that the privilege thus conferred is subject to the right of the municipality to exercise its supervisory police power over the streets, and, in the event that the defendant’s poles are so placed as to obstruct or materially interfere with the ordinary use of the streets, to compel their removal. But I do not find anything in the record to indicate that there is any such obstruction or interference in this case. On the contrary, it is conceded that many of the defendant’s poles were not only located and erected by the consent of the municipality, but that they were actually used as a support for the wires of the city fire alarm system, and it appears that all of them have been erected inside of the curb, and in such a manner as not to encroach upon either the street or sidewalk.

*377We have, therefore, simply the case of a municipality assuming to prohibit the erection of the defendant’s poles anywhere in its streets, under the pretense that by so doing it is exercising the police power conferred upon it by the Legislature. This, I think, is an arbitrary and improper attempt to interfere with the rights which the defendant acquired under the act above referred to, and one which ought not to be sanctioned.

I am, therefore, in favor of vacating the plaintiff’s injunction and reversing the order appealed from.

Order affirmed, with ten dollars costs and disbursements.