New Union Telephone Co. v. Marsh

condition that they should be erected “under the direction” of such board. It being clear that the franchise comes from the state, and that the power to regulate the erection of the poles and wires in the streets of the village rests with its board of trustees, it is wholly immaterial whether the so-called franchise or consent granted by such board to the plaintiff has expired or not, so long as the resolution giving such -consent in no way assumed to regulate or to fix the places or manner iin which such poles and wires should be erected. So far we have .agreed substantially with the learned referee who tried the case; but Ire went beyond this, and put his decision dismissing the petition upon .the ground that the municipal authorities are necessary parties to, and ■entitled to notice of, the proceeding, under section 3361 of the Code of -Civil Procedure. In this respect we think he was in error. Section •3361 of the Code of Civil Procedure requires that the petition and notice of presentation thereof to the court “must be served upon all the ■owners of the property at least eight days prior to its presentation,” •.and the term “owner” is defined by section 3358 of such Code to include “all persons having any estate, interest, or easement in the property to be taken.” The property sought to be condemned here is in a public street. The fee is in the defendant, Marsh, subject to the mortgage interest of the defendant West, and subject to the easement and right of the public to use it as a street. The care and control of highways under the common law was vested in the sovereign. In this state such care and control is in the sovereign people, and they speak by their representatives in the Legislature. Neither the village of Glens Falls nor its board of trustees has, as such, any estate, interest, or easement in the property sought to be taken. They are not in any sense “owners” of such property within the 'meaning of that .term as used in the statute. The property to be taken is simply the -right to impose an additional burden upon the property rights of the ■owners of the fee, and tire condemnation, if made, must be subject .and subordinate to the right of the public to use the street for street purposes. Nothing can be taken from the public by the proposed condemnation. The local authorities, notwithstanding such condemnation, -will, under the authorities above cited, still retain the right to control :and regulate the use of the streets by the public and by those having franchises to occupy them. No case has been called to our attention where it has* ever been held that the municipal authorities were proper or necessary parties to a proceeding to condemn rights to impose additional burdens upon streets. We think, also, that the plaintiff was authorized, under section 102 of the transportation corporations law, to take proceedings to condemn the right to place its pole and lines in front of the defendant’s property. It sufficiently appears in the evidence that the property or right which the plaintiff seeks is for a public use, and also that the plaintiff has' failed to agree with the owners upon the compensation to be paid- therefor, and the section referred to provides in express terms that in case of such failure “such compensation shall be ascertained in the manner provided in the condemnation law.”

It is .difficult to determine from the petition whether the plaintiff is seeking to condemn the fee of sufficient ground upon which to erect

its pole or only an easement. We think that all the plaintiff needs or can require for its purposes is an easement for its poles in the street and a right of way for its wires, and that it should not be permitted to take the fee of any land in the street; but that is a matter which can be regulated by the judgment, and the petition should not be dismissed because it asks for more relief than can properly be granted. It does not appear here that the board of trustees, in the exercise of its right to regulate and control the erection of telephone and telegraph poles and wires in the streets, has ever approved the location of the pole and wires at the place in question. Ordinarily, it would seem that it would be better if the exercise of that right should precede the institution of proceedings to condemn, yet, as the consent of such board to the erection of a pole at a particular place or tó the erection of wires in a specified way is but a revocable license, and subject at all times to such reasonable changes and regulations as may be made by the municipality, through its properly constituted authorities, we do not think that the failure to show that such consent has been given, is of sufficient moment to stand in the way of proceeding by condemnation to procure the right or easement from the defendant to erect the pole and lines in question in front of her premises. The judgment in the action which this plaintiff brought against West does not, in our opinion, stand in the way of the plaintiff’s right to condemn an easement in the street for its purposes. All that case decided was that the plaintiff had no right to maintain its pole and lines in the street in front of this property without the consent of the then owner of the fee, and without acquiring the right so to do in a lawful way, which is altogether a different question from that presented here.

The judgment should be reversed, the referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concur, except.HOUGHTON, J., who dissents. .