dissenting.
The city has title to its streets, as stated in the majority opinion, and can, of course, regulate and control the use of the streets in planting and maintaining trees therein and in the use of poles and wires for public service. It is said in the opinion that the council had authority to grant a right of way over the streets for these poles and wires, and that the use of the streets for that purpose is a public use, and “if the defendant had the right under its franchise to trim the plaintiff’s trees, but in the exercise of that authority it damaged her property, it should respond in damages under section 21, art. I of the constitution, which reads: ‘The property of no person shall be taken or damaged for public use without just compensation therefor.’ ”
This, it seems to me, fails to decide the questions presented. Did the defendant have the right to occupy the space which the city had allowed it to take under its franchise to the exclusion of all except the city? If it did, should the plaintiff have prevented her trees from infringing upon that space, and, if she neglected that duty, would she thereby become a trespasser? If the defendant found the animals or trees of others trespassing upon its property and so injuring the service, .would it have the right to remove such encroachments in a reasonable and prudent manner? These are the questions, as it appears to me, that ought to be decided in this case. If the defendant had a right to the space it occupied, and for that reason had the right to prevent the plaintiff from crowding into that space with her trees, the trimming of the trees is not taking or damaging them for public use any more than if the city should trim them to prevent them from' interfering witli the use oí the sidewalk. As well hold that to drive trespassing animals from the capítol grounds would be damaging them for public, use. It might, of course, be a great damage to them if they could not obtain feed elsewhere, but the act of driving them away *812would not be within the constitutional prohibition. I understand the above language quoted from the majority Opinion to mean that the cdurt intends to hold that, because the original location of the lines and poles along this street cast an additional burden upon the adjacent property, therefore each trimming of the trees from time to time, to prevent their infringing upon these lines and poles, will be an additional damage or taking of the property for public use. I think I ought to protest against such holding.
If the occupation of the space in the street allotted to defendant and the proper maintenance of its lines and poles within that space to the exclusion of the owner of the adjacent lots in any way affected and lessened the value of the lots, damages to the lots so caused might be claimed or waived when the lines and poles were located and the burden thereof cast upon the adjacent lots. Afterwards damages caused by any improper or unlawful use ’of the space appropriated or by negligent or malicious conduct on the part of defendant in the use of its property and rights could be recovered by the party injured, but not damages caused by the original occupation of the street and the lawful use of the franchise and location granted to defendant by the city. Damages caused by the original location of the lines and poles or that necessarily resulted therefrom are presumed to have been received or waived at the time of the appropriation of the space allotted by the city for that purpose.