dissenting. The majority opinion is a perfect illustration of the exception swallowing up the rule. The opinion indicates that this case cannot be affirmed without overruling one or more of the prior decisions of this court on the subject. In my view, the majority have just overruled all three precedents on the subject. Ark. State Highway Comm. v. Ark. Power & Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1959); Ark. State Highway Comm. v. Ark. Power & Light Co., 235 Ark. 277, 359 S.W. 2d 441 (1962); and City of Little Rock v. Ark. Louisiana Gas Co., 261 Ark. 347, 548 S.W. 2d 133 (1977).
In the first AP&L case in 1959, the comments of this court quoted by the majority were not dicta, as the court was merely stating the general rule before finding that the facts fell within the exception to the rule due to the complete ouster of the utility’s facilities from the right-of-way. The general rule was stated as follows:
But even though the Power Company has the right to maintain its poles on the rights of way, it does not mean that the company could not be compelled to move its facilities so as not to unnecessarily interfere with use of the streets. . . . Hence, if the city or county should change the right of way of a public street or road, or widen it, or relocate it, the Company could be required to change its poles and wires without compensation so as not to ‘unnecessarily and unreasonably impair or obstruct’ the street.
The basic rule is also set out in 12 McQuillin on Municipal Corporations 183, § 34.74a (3d ed. rev. 1970):
The fundamental common-law right applicable to franchises in streets is that the utility company must relocate its facilities in public streets when changes are required by public necessity. Accordingly, it is generally held that the municipality may require a change in the location of pipes or other underground facilities of the grantee of a franchise, where public conveniences or security require it, even at the grantee’s own expense
In the second AP&L case decided in 1962, this court reaffirmed and quoted the basic premises previously set forth in the earlier AP&L case. However, as the Highway Commission required the utility to remove its poles from the path of a freeway and replace them with much higher poles, the court found that an ouster of the utility’s facilities had occurred, justifying reimbursement of the relocation expense.
The Arida Gas case in 1977 also found “in effect, an ouster rather than a mere relocation” due to the severe limitation of access to the facilities placed upon the utility by the street improvement project. By this comment the court obviously still acknowleded the general rule that the cost of a “mere relocation” would not be reimbursed to the utility.
In the present case, the City of Fayetteville required the telephone poles and gas meters of appellants to be relocated either within the existing right-of-way or the newly acquired right-of-way adjacent thereto as a part of the street widening project. There was no ouster from the right-of-way as in both AP&L cases, nor an ouster by restriction of access as in the Arkla case. The evidence clearly shows that there was a “mere relocation” with no extenuating circumstances, and as the facts square perfectly with the basic rule acknowledged by all three decisions of this court on the subject, I would apply the rule rather than discard it. For these reasons the finding of the learned Chancellor should be affirmed.
George Rose Smith, J., joins in this dissent.