Bradley v. American Telegraph & Telephone Co. , 54 Pa. Super. 388 ( 1913 )

Opinion by

Henderson, J.,

The plaintiff’s evidence exhibited a clear title to the land on which the telephone poles are located. The burden was therefore shifted to the defendant to show a right to the occupancy of the plaintiff’s property. This it undertook to do by the introduction of evidence tending to establish a parol license. The right asserted lacks the essential quality of an easement that there must be two tenements owned by distinct proprietors, one to which the right is attached and another on which it is imposed: Washburn’s Easements and Servitudes (3d ed.), sec. 3; Grant v. Chase et al., 17 Mass. 443; Dark v. Johnston, 55 Pa. 164; nor can it exist in parol: Huff v. McCauley, 53 Pa. 206. The whole of the defendant’s case, therefore, has its foundation in the allegation of a parol permission to construct the line. The letter of John Q. Denny, the owner of the land, to Mr. Seiler, dated November 19, 1890, cannot be regarded as a grant vesting in the defendant an interest in the land or a right of way over it. It does not on its face purport to confer any right. It was not addressed to the defendant nor to any person representing it, nor does it describe any location by reference to which a right could be maintained. It is a declaration to a friend of the writer’s who lived in the immediate vicinity and was familiar with Mr. Denny’s affairs that he had given permission to some person connected with the "Long Distance Telephone” to place some poles on his property "across from your station.” This communication was handed to Mr. Zimmerman, who had the negotiation with Mr. Denny but was never delivered to Mr. Seiler. Zimmerman delivered it to Mr. Fulford who had charge of the construction of the line. That it was not intended to be a grant of a right of way is clear from the defendant’s own evidence. Mr. Denny refused to sign any paper to that effect and refused to be bound by any consideration, but told Zimmerman they could plant some poles so long as they did no damage by cutting trees. The letter was intended simply to notify Seiler that the writer had made an arrangement with Zimmerman because Denny told Seiler everything that “turned up down there,” he and Seiler being very familiar. Denny’s recollection was that Zimmerman was the first man to approach him with reference to placing the poles, but other evidence in the case tended to show that the permission was given directly to Fulford, the man in charge, at a later date, and that it was done on the premises in the presence of Seiler. The recollection of Denny was not distinct, and the testimony of Seiler as to the circumstances under which the permission was given to build the line across the lot was apparently, more satisfactory to the jury than that of Denny, and according to Seiler’s testimony the permission was a limited one. Seiler introduced Denny to Fulford; the three walked out to the ground and Fulford .showed Denny where he wanted to place the poles; they then returned to Seiler’s office when Fulford wanted Denny to sign a contract or paper that he would give him permission to go on the land. Denny said he would not sign a contract; that he would not sign any paper, but told him to put up his poles and if he wanted him off he would notify him to get off; that he could erect.the poles but they were to be removed when notice was given to that effect. Under the evidence then the case turned on the question of fact whether a perpetual license was granted or a license at the will of the owner of the land, and this question was submitted to the jury in a clear and fair charge by the learned trial judge. A part of the evidence introduced by the plaintiff consisted of a letter written by G. H. Warren, special agent of the defendant, dated January 21, 1909. This letter grew out of a negotiation, between the plaintiff and the agent with reference to the right to maintain the poles on the ground and in regard to the number of poles standing on the plaintiff’s land. It was written after a conversation between the plaintiff and the special agent which led the latter to investigate the records of the company to ascertain by what right the company had maintained its poles there and contained the statement that on investigation it was found that no rights were conveyed to the defendant by the plaintiff or any former owner of the property on and along which certain poles were located and asking for a conference for the purpose of agreeing on compensation for the use of the land. It is strongly urged by the appellant that this was inadmissible because written by an agent who was not shown to have authority to bind the company. That Mr. Warren had general supervision of the subject of right of way and the negotiation for the adjustment of claims and other difficulties which might arise with reference thereto is clearly shown. No other person had connection with that part of the business. This brought him into negotiation with the plaintiff in regard to the right of way controversy. The negotiation continued for a length of time and this letter was written while that negotiation was pending. It only asserted what appears in other parts of the case and about which we do not understand that there is any dispute. The defendant does not claim to have any writing which gives it the privilege of using the plaintiff’s land. Its whole case depends on a parol license. The special agent was therefore making no concession nor was he yielding any right on which the defendant could rely. The agent merely stated the result of his examination and related the matters of fact. It is suggested that the letter contained conclusions of law, but this is not the effect of the document. The defendant was not precluded from showing that it had some sort of title and rights not evidenced by documents on file, but no effort was made to establish any other claim than that which is said to have been given to Zimmerman by Denny, If it were out of the case the situation of the parties would not be changed. The defendant was put to the necessity under the pleadings of showing its title and no other was presented or pretended except the parol license. Objection was also made to the admission of the contract made by the defendant with the McCormick estate in connection with the testimony of Seiler that Fulford said to him while he was obtaining the consent of Denny to set the poles on his land that Denny’s situation was the same as McCormick’s and that “he would have to get off when he (Denny) gave them notice.” This declaration if made while Fulford was getting the contract from Denny was part of the res gestee and admissible on that account. Moreover, the statement related to the transactions over which he had exclusive control and which existed by parol only according to the contention of both of the parties, and the acts and declarations of the agent were therefore binding on the defendant. The corporation must act through its agents, and where it gives an agent control of a branch of its business his declarations within the bounds of his authority while transacting the business affect his principal: United Brethren Mutual Aid Society v. McDermond, 12 W. N. C. 73; Ardesco Oil Company v. Richardson, 63 Pa. 162; Union R. R. & Transportation Co. v. Riegel, 73 Pa. 72. But irrespective of the letter of Warren and the McCormick agreement there is evidence which supports the plaintiff’s contention that the poles were to be erected on the condition that they were to be removed at the request of the owner of the land. The refusal of the owner to sign any agreement or to accept any compensation, the act of the defendant in accepting a license from an adjoining owner to be terminated on sixty days’ notice and the evidence of Seiler as to the terms arranged with Fulford all support the plaintiff’s position. If the company acquired possession under such circumstances and on such a condition it is not now in a situation to assert that having erected its poles it has an executed license in perpetuity. It would be a fraud on the owner to enter in that manner and afterward hold possession under a .claim of a different title. When a person excuses what would otherwise be a trespass on the ground of a parol license, such license should be clearly established. The line is near to the highway, the defendant has had long use of the plaintiff’s land without compensation and we think no hardship is exhibited or circumstance established which would create an equitable estoppel.

The judgment is affirmed.