Seaboard Telegraph & Telephone Co. v. Kearny

The matters in respect to which the appellant claims issues of fact were raised, requiring the issuance of an alternative instead of a peremptory writ, are either inconclusive on the question of the right to the relief, or involved conclusions by way of opinion rather than facts by way of defense. Conceding that the relator’s system of lines and wires has been out of use for a short period, owing to the financial difficulties of the relator’s predecessor in interest, and for a longer period since by reason of the appellant’s refusal to authorize its repair, the fact affords no justification for the refusal to permit its lawful restoration. If in its present condition it is a menace to life or property, the necessity for its repair is imperative, and furnishes reason for granting, rather than refusing, the permit, as suggested by Mr. Justice Garretson in the opinion at special term, which will be found on page -, 66 App. Div., page 15, 74 N. Y. Supp.

The parties have argued the appeal upon the assumption that the permit is required by section 584 of the Greater New York charter (chapter 378, Laws 1897). So far as applicable, that section reads as follows:

“It shall be unlawful, after the passage of this act, for any person or corporation to take up the pavement of any of the streets and parks of said city, or to excavate for the purpose of laying underground any electrical conductors, or to construct subways, unless permission' in writing therefor shall have been first obtained from the said commissioner of public buildings, lighting and supplies, indorsed by the commissioner of highways. And except with a like permission therefor no electrical conductors, poles, wires or other electrical devices or fixtures shall be constructed, erected, strung, laid or maintained above or below the surface of any street, avenue, highway or other public place, in any part of said city.”

It is not pretended but that the system in question was lawfully constructed and maintained before the creation of the present city, and it cannot be disputed that the law requires the person or corporation owning or operating it to keep it in repair. If a live wire were out of order, or a pole dangerously decayed, the duty to repair would at once exist, and it would be a narrow construction of the statute which would make the discharge of that duty dependent upon the procurement of a permit. The rules of the appellant’s department require the removal of broken and dead wires, and wires, poles, and fixtures not actually in use, and as good reason exists why a permit should be required to enable those interested

That the relator is the lawful owner of the franchise under which) the system has been constructed and heretofore maintained is undoubted. In People v. Deehan, 153 N. Y. 528 , 47 N. E. 787 , it was conceded that a franchise to a gas company to lay conductors in the streets and carry on business (page 532, 153 N. E., and page 788, 47 N. E.) “is property that cannot be destroyed or taken from it or rendered useless by the arbitrary act of the village authorities lia refusing the permit to place the conductors under the streets. People v. O’Brien, 111 N. Y. 41 , 18 N. E. 692 , 2 L. R. A. 255 , 7 Am. St, Rep. 684 ; City of Brooklyn v. Jourdan, 7 Abb. N. C. 25 .” The principle was enunciated that, while the authorities could enact reasonable regulations with respect to all interference with the streets they could not lawfully refuse to permit the exercise of a right which had been expressly granted under the sanction of law. To the same effect were the decisions in People v. Keating, 55 App. Div. 555 , 67 N. Y. Supp. 413 , and Ghee v. Gas Co., 158 N. Y. 510 , 53 N. E. 692 . In the latter case the court said (page 524, 158 N. Y., and page 697, 53 N. E.):

“We have had no difficulty in reaching the conclusion that the consent that is necessary to confer a franchise upon a gaslighting corporation can Ice given only by the municipal assembly through appropriate ordinances, fetsk. that when the consent has been granted to a corporation duly created, toy which a corporate franchise, which is property, has been acquired, the administrative officers must be applied to for a permit that will allow the corporation to exercise such rights in order that the public convenience may be subserved. The permission forms no part of the franchise, and is not: essential to its existence, and, if refused, the granting of it may be compelled by mandamus, as, indeed, it has been in a number of cases; but tiseofficers to whom application must be made may, within reasonable limits, fix the time when work on the streets may be begun, determine what portion) of a street shall be first opened, how much of it may be left open at a time, the depth of the trench, and other details, the careful regulation of whitinis of first importance to a metropolitan city like New York.”

The appellant’s refusal to give a permit in this case is, in effect, &• condemnation of the relator’s property, and a confiscation of its-franchise. It proceeds upon the theory that the corporate right to maintain the system and carry on the business has been forevec lost by nonuser. The right so to adjudge is not vested in the appellant by the charter, and is not essential to the discharge of his lawful duties. It is true, as stated by the learned justice at special term!* that he may reasonably and lawfully prescribe the time, method, and! conditions under which the work of repair shall be done, although he may not deny absolutely the right to do it. It is unnecessary tha6 this right of regulation and control by the appellant of the time*, mode, and conditions of the work should be recited in the writ. Ifr exists independently of the writ by statute and by virtue of the police powers of the municipality, and the writ must be deemed to be grant

Order affirmed, with $10 costs and disbursements. All concur.