Mitchell v. Southern New England Telephone Co. , 92 Conn. 633 ( 1918 )

Six grounds of demurrer are alleged, of which four are quite independent of each other. As the one first stated is sufficient to justify the action of the court in adjudging the complaint inadequate as a statement of a cause of action, it is unnecessary to notice either of the others. That one charges that the complaint is insufficient since it does not allege that consent was not given by any of the plaintiff's predecessors in title, but only that he has not given his consent.

It appears by the complaint that the wires in question are located within the limits of the highway and were placed where they now are seven years before the plaintiff acquired title to the premises he now owns. They were so placed in pursuance of legislative authority given to the defendant as a telephone company to construct and maintain telephone lines upon any highway. General Statutes, § 3903. If, in addition, the defendant's location and erection of them was with the consent of the then adjoining landowner, there was in that action, regardless of any statute, no invasion of his rights. Its entry upon the land and construction thereon of its lines of wire was not unlawful. If it be assumed that the consent given amounted to nothing more than a revocable license, no act of revocation appears. But that is not all. In so far as the maintenance of the lines subsequent to their erection is concerned, whether during the ownership of the consenting landowner or during that of his successors in title, our statutes regulating the general subject of the location, construction and maintenance of telegraph and telephone lines and the redress to be obtained by aggrieved landowners, have large importance. General Statutes, §§ 3903-3907; Public Acts of 1917, Chap. 310. An examination of them makes it evident that it was the legislative purpose to place telegraph and telephone lines, located and erected with the consent of adjoining landowners, in the same position as that occupied by those located and erected upon the consent of the public utilities commission, and to give to the former consent the same force and effect as that attached to the latter, in that in neither case might the company be sued in an action at law for trespass. Consent in either form having been obtained, any claim for damages then or thereafter suffered by the landowner, whether arising from the imposition of an additional servitude or from a direct injury to his adjoining property, is left to be pursued in the manner provided in § 3907. The plaintiff's complaint, therefore, which alleges no more than that the plaintiff has not during his period of ownership consented to the maintenance and operation of the wires, is insufficient. See Mitchell v. Southern New England Telephone Co.,90 Conn. 179, 182, 96 A. 966.

There is no error.

In this opinion the other judges concurred.