Dailey v. State. Objection was made at the trial to the admission of any evidence under the indictment. Exceptions were also taken to the refusal to charge divers propositions tendered by counsel for defendants. But the principal question in the case is raised by the exception to the following instruction, given by the court to the jury, viz.: "Upon the question as to the rights of the telegraph company, the court says to you that at the time of the erection of the poles and the construction of the telegraph line, whether in 1882 or 1884, the land upon which this highway was situated was the property of Mr. Taylor, subject to the right of way for public use for a highway; that is for travel and keeping it in repair as a highway. "As between Mr. Taylor and other individuals or corporations, it could be used for no other purpose without entitling him to compensation for such use; and the entry of this telegraph company upon his land without compensation to him, and without an agreement between him and such corporation, if you find this corporation did so enter, was not a rightful entry or occupancy; and as to the trees growing upon this land at the time such company constructed its lines, as between him and such corporation, he had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company. The United States could not nor has it attempted to take away by any statute that right. Mr. Taylor's right to maintain the trees in the ordinary way was an absolute right, and this right could be taken from him in no way until such time as they acquired the right to maintain such lines by prescription, which means actual occupancy for twentyone years or more, or by appropriation or agreement; and for this company, by its agents, without first acqiuring the right to enter upon this land, and to cut the trees growing thereon, would be proceeding without lawful authority." Dailey v. State. If this construction is wrong, the conviction cannot stand. It is maintained by the plaintiffs in error that the charge is erroneous because the Postal Telegraph Cable Company derived authority by force of section 3454 and following of the Revised Statutes of Ohio, and of section 5263 and following of the Revised Statutes of the United States (by which its line is made an instrument of interstate commerce), to enter upon and occupy the highway for its telegraph line, and was therefore rightfully there for the purposes of its business, and that, as it appears that what was done by the employes of the company in the way of trimming the trees of Mr. Taylor was done to prevent the branches from interfering with the operation of the telegraph line, their acts could not be in violation of any right of Mr. Taylor, inasmuch as he could not be possessed of any right to intrude, by growing trees or otherwise, upon the right of occupancy and use thus acquired and enjoyed by the company. Such acts would not be, within the meaning of our criminal statute, wrongful; nor could the land, as respects the company thus rightfully in occupancy of the highway, be esteemed the land of another, within the meaning of section 6880. The sections of the Ohio statutes cited give authority to any magnetic telegraph company to construct telegraph lines from point to point along and upon any of the public roads and highways, etc., etc., but the same shall not incommode the public in the use of such highway. Any such company may enter upon any land, whether held by an individual or corporation, and whether acquired by purchase or appropriation, for the purpose of making preliminary examinations and surveys, with the view the location of lines of magnetic telegraph, and may be deemed necessary for the erection and maintenance of its poles, piers, abutments, wires and other necessary fixtures, an for stations, and the right of way over such lands and Dailey v. State. adjacent lands sufficient to enable it to construct and repair its lines; but no such company shall, without the consent of the owner thereof in writing, enter any building or edifice, or use or appropriate any part thereof, or erect any telegraph pole, pier or abutment in any yard, or in any inclosure within which an edifice is situate, nor erect any telegraph pole, pier, abutment, wires or other fixtures so near to any edifice as to occasion injury thereto, or risk or injury in case such pole, pier or abutment be overthrown, nor injure or destroy any fruit or ornamental tree. The sections of the United States statutes cited give to any telegraph company organized under the laws of any State the right to construct, maintain and operate lines of telegraph over and along any of the military or post roads of the United States, but the lines must not interfere with the ordinary travel on such roads; and, before any company can exercise any of the powers or privileges conferred, such company shall file its written acceptance with the postmaster-general of the restrictions and obligations required by law. A later section declares that all public roads and highways, while kept up and maintained as such, are hereby declared to be post routes." .. It is apparent that the only limitation expressed upon the right to maintain lines of telegraph upon the public highways is that they shall be so constructed as not to interfere with the public use of the highway. But the statute nowhere undertakes to deal with the private right of ownership in the highways, and the question arises. whether it was the legislative purpose to give rights to telegraph companies inconsistent with the rights of the owner of adjoining lands in the highways. Whatever may be the rule in other States, we have supposed that the question of of the the right in the highway of a land owner whose title extends to the center of the road is not an open one in Ohio. The question has been the subject of adjudication in a score Dailey v. State. of cases decided by this court, notably in the following: Bingham v. Doane, 9 Ohio, 167; Crawford v. Delaware, 7 Ohio St. 459; Railroad Co. v. Cumminsville, 14 Ohio St. 523; Hatch v. Railroad Co., 18 Ohio St. 123; McClelland v. Miller, 28 Ohio St. 502; Railroad Co. v. Williams, 35 Ohio St. 168; Railroad Co. v. O'Hara, 48 Ohio St. 343. Perhaps the principle is not better stated than in Railroad v. Williams, supra, opinion by GILMORE, C. J., as follows: "As between the public and the owner of land upon which a common highway is established, it is settled that the public has a right to impove and use the public highway in the manner and for the purposes contemplated at the time it was established. The right to improve includes the power to grade, bridge, gravel or plank the road in such a manner as to make it most convenient and safe for use by the public, for the purposes of travel and transportation in the customary manner, which is well understood to be by the locomotion of man and beast and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owner is to receive compensation for when his land is appropriated for this purpose. The fee of the land remains in the owner. He is taxed upon it; and, when the use or easement in the public ceases, it reverts to him, free from incumbrance. In the exercise of the right of eminent domain, the State, through the General Assembly, may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway. In such case, the rights of the public and the rights of the owner are entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other. pany, by occupying the highway, The railroad comconstructing its track, Dailey v. State. and operating its trains thereon by steam motive power, completely diverted the highway from the uses and purposes for which it was established. This new use to which the highway has been diverted imposes burdens on the land that are entirely different from and in addition to those that were imposed by the highway. The right to so divert the use, and impose additional burdens on the land, could only be acquired by the corporation by agreement with the owner, or by appropriating and making compensation therefor, in the mode prescribed by law." Applying the doctrine of this holding to the case at bar, it is manifest that the learned trial judge did not err in his charge bearing upon the property right of Mr. Taylor in the highway, but that, on the contrary, the law upon that subject was correctly stated to the jury; and, if right upon that point, the result would seem to follow, as further charged by the judge, that the land owner" had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company." The rule of law rests upon the clear ground that the appropriation of the public highways for the purpose of telegraph lines was a new The highways were originally dedicated for the purposes of public travel, and not for the purpose of telegraph lines. Hence the new use imposed an additional burden. The statutes of Ohio grant to telegraph companies secondary and subordinate, rather than co-ordinate, rights with travelers, which fact is apparent in the provision that the lines are to be so constructed as not to interfere with the public use of the highway. (Railway Co. v. Telegraph Association, 48 Ohio St. 390.) The presence in the statute of provision for the protection of private rights where lines are built on private lands, and the absence of such provision where the highways are used, is strong indication, as it seems to us, that the purpose was use. VOL. V-13. |