Vernon v. Warner Amex Cable Communications, Inc.

Douglas, J.,

concurring. I concur. I write separately to make several points.

First, I think the majority opinion, if it holds that appellee Warner is a public utility (and that is not at all clear), is wrong in such conclusion. Since the issue is not dispositive of the case, very little discussion need be given the question. Suffice to say that R.C. Chapter 5727 deals with “public utilities.” R.C. 5727.01(A) reads:

“ ‘Public utility’ includes each corporation, firm, individual, and association, its lessees, trustees, or receivers elected or appointed by any authority, and referred to as an express company, telephone company, telegraph company, freight line company, equipment company, electric light company, gas company, natural gas company, pipeline company, water works company, messenger company, union depot company, water *122transportation company, heating company, cooling company, rural electric company, or railroad company. Public utility includes any plant or property owned or operated by any such company, corporation, firm, individual, or association.” See, also, R.C. 4905.02.

Conspicuous by their absence, for purposes of this case, are community antenna television systems (“CATV”).

R.C. Chapter 5727 requires the valuing, for tax purposes, of the property of public utilities. R.C. Chapter 4905, and specifically R.C. 4905.04, gives the Public Utilities Commission the authority to supervise and regulate public utilities. R.C. Chapter 4909, and specifically R.C. 4909.15, vests jurisdiction in the Public Utilities Commission to fix rates. It is my guess that the majority decision holding that appellee Warner is a public utility will come as a surprise — and complete shock — to all CATV operators. Of course, they need not worry because upon thoughtful scrutiny, the majority opinion on this question will never withstand a proper legal analysis. In reality, not even appellee Warner would contend it is a public utility and, except for what the designation might do for appellee in this case, it really does not want to be.

Fortunately, for all involved, the misguided discussion of the majority regarding the public utility question is not dispositive in this case nor is the confusing dialogue necessary to a resolution of the problem before us.

The simple question before us is what rights does a cablevision company, acting pursuant to a municipal ordinance granting a proper license, have to install equipment in the streets or the right-of-ways vis-a-vis the rights of abutting landowners. Since this issue has never been directly addressed by this court, we should give a clear and definitive answer so that all parties with an interest in the subject will know, without question, what the highest court of this state’s position is on the issue.

Herein we are involved with a street within the municipality of the city of Akron. In regard to municipal streets, the rule in Ohio is that the fee title of the street and right-of-way is in the city. See Hamilton, Glendale & Cincinnati Traction Co. v. Parish (1902), 67 Ohio St. 181. See, also, R.C. 711.07.1 concede that the law has been that the city holds the fee in trust for street purposes and that abutting owners have certain rights therein. Thus, the municipal corporation has a fee title in the right-of-way, but the fee is a qualified or determinable one. In light of our modern-day society and its needs, as well as the home-rule powers of municipal corporations, we should hit the issue head-on and review the thinking and the authority regulating the use of the streets and the dedicated abutting right-of-way land.

Without a need to even cite the cases, we know that the street right-of-way may be used, under proper municipal authority, for the installation of poles, cables, wires and pipes for the delivery by “public utilities” of gas, electricity, telephone, water and sewer services. As our population has increased, so have the demands and needs of our people for other *123necessities, conveniences and luxuries of our modern day. So long as we do not substantially restrict the property owner’s right of access to light, air and view, the right-of-ways should be usable for the public good and benefit as determined by the local legislative authority.

This general proposition has, in fact, already been endorsed by this court. While the question involved water lines and property outside a municipal corporation, this court, in an enlightened opinion in Ziegler v. Ohio Water Serv. Co. (1969), 18 Ohio St. 2d 101, 106 [47 O.O.2d 244], stated:

“We are unable to discern any substantial burden visited on plaintiff’s property by the intended construction. A denial of the use of a highway for the purpose of transporting water to areas where it is needed, as in the instant case, would be the rejection of evolutionary change. * * * We therefore hold that the construction of water pipes in real property, for which an easement for highway purposes has been given, is not an added burden on such land, for which the owner must be compensated. * * *”

As in this case, the defendant in Ziegler was a private corporation for profit, but the court said that a “public purpose” would be presumed since the project was undertaken with the approval and authority of the local governing body. It is my judgment that this same rationale applies to CATV systems authorized pursuant to appropriate municipal authority.

What is that municipal authority which permits a local community, through its legislative body, to grant a license to operate a CATV system, the right, to some degree, to regulate such operations and the right to authorize and permit the use of public right-of-ways for such systems to install the necessary accoutrements necessary for the operation of such systems?

Section 3, Article XVIII of the Ohio Constitution provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Pursuant to this authority, this court held in Perrysburg v. Ridgway (1923), 108 Ohio St. 245, in paragraph two of the syllabus, that “[t]he power to establish, open, improve, maintain and repair public streets within the municipality, and fully control the use of them, is included within the term 'powers of local self-government.’ ” (Emphasis added.)

This being so, the next question becomes whether exercising such powers with regard to street right-of-ways conflicts with general laws. The answer to this subsequent question is not difficult to find. Not only does the exercise of such authority not conflict, it is in perfect harmony with state law, in that R.C. 723.01 provides, in part, that:

“Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, [and] streets, * * * within the municipal corporation * * *.” (Emphasis added.)

*124Accordingly, it should be clear that past case authority, home-rule power through the Ohio Constitution, statutory authority and common sense dictate that if a local municipality has the power to issue a license to operate a CATV system and to regulate, to some degree, that system, then as night follows day, it should also be clear that such municipality has the right and power to authorize the installation of CATV equipment in the right-of-ways of city streets in order for the system to function.2 I would include in such a holding not only in-ground installation but also the use of air space over such public right-of-ways. The police power of a local government extends to providing for the health, safety and general welfare of the citizens of such government and if the local legislative authority determines that the general welfare of its citizens is served by authorizing a CATV system and the use of the street right-of-ways and other public easements and right-of-ways, for installation of the equipment necessary to operate such a system, then such determination should be final.

Thus, in concurring with the majority, I would hold that where a municipal authority has authorized the installation of equipment, in public right-of-ways, to operate a CATV system and such installations do not substantially violate and interfere with an abutting landowner’s limited rights of access, light, air or view, that such decision of the local authority is proper and final and is in accordance with constitutional, statutory and case law authority.

Wright, J., concurs in the foregoing concurring opinion.

This point of view is supported further by the Cable Communications Act of 1984 which addresses the subject of use of public right-of-ways and easements by cable systems. Section 621(a)(2) of the Act states:

“Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses * * *.” (Emphasis added.)