1. Express municipal assent to the occupation of a city’s streets by a telephone company can only be shown by formal municipal action, and not by mere general declarations of witnesses that such municipal assent was given. Parol statements of witnesses that certain improvements were made or work was done “with the full knowledge and consent of the municipal authorities of said town, including the mayor and council of said town;” and that a telephone company had established and maintained in the town a telephone system, with poles, wires, and other fixtures in, on, and over the streets, “all by the consent of the municipal authorities of said town;” and that a witness, who has been a member of the town council and of a committee thereof, has designated and pointed out in the streets of said town where to locate the poles and wires, “receiving his authority to do so from the town council of said town in regular meetings;” and other like statements, were not admissible in evidence.
2. Even if some of the testimony admitted over objection was competent as tending to raise an estoppel, it does not appear whether the court considered the testimony for that purpose, or to show an express municipal grant; and as the record does, not show it was so restricted, on another hearing its admissibility to establish an estoppel may be passed on by the court.
3. Material evidence having been erroneously admitted, which may have played an important part in affecting the decision of the presiding judge, the judgment is reversed and direction given that a new trial be had upon proper evidence.
Judgment reversed.
All the Justices concur. Injunction. Before Judge Spence. Mitchell superior court. December 7, 1907. Davis & Merry, for plaintiffs in error. J. T¡ Hill and Pope & Bennet, contra.