Telephone Co. v. Tyson , 160 Md. 298 ( 1931 )

Because of a conviction that the construction of the grant adopted by the court results in a defeat of the purpose of the instrument, as disclosed by its terms and the circumstances of its execution, the writer ventures to express the reasons for this dissent.

In the angle formed by the intersection of two public highways, which were then known as the Bel Air-Van Bibber Road and the Van Bibber-Edgewood (now Post) Road, there was a tract of land which fronted on both public highways whose center lines were in its boundaries. On this tract, and along and near and at some points outside, and at other points inside, of the northern and eastern right of way lines of these highways, the Chesapeake Potomac Telephone Company of Baltimore City had set up sixty poles as a part of its telephone system. Under these circumstances the owners of the tract executed the grant which ran to the company, its successors and assigns, and gave it the right to construct, operate, and maintain its lines of telephone and telegraph upon and along the property of the grantors, subject to the provision that the poles of the lines were to be located upon and along the roads, streets, and highways adjoining the tract. It is important to observe that the servitude imposed is not of a single telegraph and telephone line but of the grantee's "lines," and that the deed expressly includes a subsisting line by this concluding paragraph: "This grant covers (60) line poles which are now or to be located abutting our property on Bel Air-Van Bibber Road and on Van Bibber-Edgewood Road." The context of the deed, and especially the use of the plural term "lines" and of the phrase "along the roads, streets or highways adjoining the said property" in prescribing the location of poles, when but one line was constructed and no street was in existence, are irrefutable evidence that the grant contemplated future lines along other highways than those subsisting at the time of the grant.

While the terms of the grant explicitly confine the location of the poles of the future lines along and upon the highways coming within the description of the grant, they did not apply to the line which had been brought within the operation of the grant by its last paragraph, which has been quoted, because this line had been physically located before the grant, and its sixty poles had been permanently set along and near, but, indifferently, within and without the limits of the then existing highways. This built line, however, and all other lines were subject to the general provision "that the cross-arms, cables, wires, fixtures, anchors and anchor guys will not extend any further over the private property of said grantor than at present, approximately eight to ten feet." So it would appear that the servitude imposed was the right of the company to erect, construct, and maintain telephone and telegraph lines on the tract of the grantors along the limits of the rights of way of the roads, streets, or highways which would adjoin the tract, provided that none of the cross-arms and other fixtures should extend more than eight or ten feet over the adjacent land of the grantors that was not occupied as a highway.

It is submitted that this construction should not have been rejected. The general rule that the rights of the parties to the deed must be ascertained from its words is subject to the modification that the surrounding circumstances to which the deed had reference when it was made may be taken into consideration in order to discover the intention of the parties to the deed, else the privilege granted may be enlarged beyond what was contemplated or may be so restricted as to defeat the intended benefits of the grant. Goddard on Easements (8th Ed.), 340, 341, 376, 402; Riverdale Park Co. v. Westcott, 74 Md. 311,322-325, 22 A. 270; West Arlington Land Co. v. Flannery,115 Md. 274, 280, 80 A. 965; Tiffany on Real Property (2d Ed.), sec. 367, p. 1329. In addition, the grant was for a particular purpose, which must be regarded in construing the grant in order to ascertain the nature and extent of the easement. David v.Kingscote, 6 M. W. 174, 197; Bishop v. North, 11 M. W. 418, 425; Frank v. Benesch, 74 Md. 58, 21 A. 550;Redemptorists v. Wenig, 79 Md. 348, 354, 355, 29 A. 667.

In the deed at bar, the clear purpose of the grantors was to give, and of the grantee to obtain, rights of way for telegraph and telephone lines along the existing or future roads, highways, and streets adjoining the land of the grantors in a certain locality. The rights and obligations of the grantors and the grantee were reciprocal. If the highways along which the line or lines of the grantee were constructed should be changed, the grantee would have to make a corresponding alteration and removal, because in this way only would the grantors enjoy the abandoned portion of the highway free of the incumbrance of the servitude, and the grantee comply with the inhering limitation in the easement.

The soundness and reasonableness of this construction is illustrated by the present situation. The company built no new line, but maintained the original one. In 1930 the State Roads Commission took over the highway known as the Bel Air-Van Bibber Road, and determined to straighten its course, widen it from thirty feet to forty feet, and construct a new roadway as relocated. Obviously it would be advantageous for the owners of the tract to replace the irregular, winding route of the ancient highway with a straightened, metaled, state thoroughfare of greater width, so the owners attempted to convey by an unacknowledged paper writing the new right of way, which embraced in large part the bed of the old highway, and caused to be inserted in the instrument a stipulation "that no telephone, gas or electric poles, conduits or wires shall be allowed in, through or over the right of way hereby granted." See Brehm v.Richards, 152 Md. 126, 131-135, 136 A. 618. This provision could not affect the rights of the company under its precedent deed. When the State finished the new roadway, it was a different highway in location, width, surface, and control, but one which adjoined the tract in question, and so was within the purview of the grant of 1918, by whose express terms the company, as against the owners of the tract, had the right to construct, operate, and maintain its telephone line and fixtures along and upon such new highway subject to the limitation that none of its fixtures extend over the land adjacent to the right of way of the new highway more than from eight to ten feet; and subject to the correlative obligation on the part of the company of removing its poles, which might not be located within the right of way of the state highway, and any fixtures which might extend beyond the prescribed distance from the boundary line of the new route. In this manner the intention of the parties to the grant, to confine the poles of the company's lines to the public way, and the projection and extension of the fixtures to a definite distance, and thereby free the land of the grantors, not in the public use as a roadway, from unsightly poles and a burdensome extension of fixtures, is gratified, and the rights of the company are maintained and enforced. The servitude which would thus result would not cast any additional or different burden upon the premises of the owners of the servient estate, since it would precisely be the privilege granted.