Castle v. Bell Telephone Co.

Laughlin, J. (dissenting):

Telephone companies are private corporations, organized and conducted for the individual profit of the stockholders. The telephone is so extensively used that it seems indispensable to professional men and those engaged in various lines of trade and business, and it is a great convenience to all others who have occasion and financial ability to use it. Strictly speaking, however, the telephone is not a public necessity or convenience. It accommodates and serves the public to no greater extent than street, steam, surface and elevated railroads; and as to these, regardless of whether they obstruct light, air and access, it is well settled that their construction is an additional burden upon the owner of the fee. (Williams v. New York Central R. R. Co., 16 N. Y. 97; Craig v. Rochester City & B. R. R. Co., 39 id. 404; Henderson v. N. Y. C. R. R. Co., 78 id. 423 ; Story v. N. Y. El. R. R. Co., 90 id. 188 ; Fobes v. R., W. & O. R. R. Co., 121 id. 505; Reining v. N. Y., L. & W. R. Co., 128 id. 163.)

, Telephones are not essential to the health of the community, or to the safety of the lives or property of the inhabitants of a city. This line is not being constructed for the city, or in fulfillment of *446any duty to the public en joined upon the municipality by the Legislature. ' Placing conduits for telephone wires in this avenue is not a proper municipal or street use as against the owner of the fee. Telephone poles and wires, or conduits for such wires, may not be lawfully erected, strung or placed in a public street or highway by a private corporation for the purpose of private contract service, without obtaining the consent of the owner of the Lee of the street or highway, or acquiring the right so to do by condemnation proceedings. (Cases relating to railroads, supra ; Bloomfield, etc., Gas Light Co. v. Calkins, 62 N. Y. 386 ; Eels v. A. T. & T. Co., 143 N. Y. 133; Van Siclen v. Jamaica El. L. Co., 45 App. Div. 2; Johnson v. Thomson-Houston El. Co., 54 Hun, 469; Metropolitan, etc., Co. v. Colwell, 50 N. Y. Super. Ct. 488; Edsall v. Howell, 86 Hun, 431; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 235.)

Substantial damages not being alleged, it may be that a court of equity is not required to grant injunctive relief. (Wormser v. Brown, 149 N. Y. 172, 173, 174, and cases cited.) The majority of the court would not, however, if that were the only question, affirm on that ground ; and in affirming they enunciate a new rule of law which I deem untenable. I, therefore, dissent, without critically examining the question as to whether or not the order could be sustained upon the.other ground.

Order affirmed, with ten dollars costs and disbursements.