TIFFANY & CO., Respondents, v. THE UNITED STATES ILLUMINATING CO., Appellant.
St/reets, injunction restraining erection of poles in—Right of property— when infringed thereby.— Weight of evidence—scale turned by inferences from, conceded facts.
The complaint alleged that defendant was about to erect a pole for the purpose of sustaining wires, in front of plaintiff’s premises, on the south west corner of Broadway and 15th street, and'affidavits were read in support of said allegations; the allegations of the complaint were fully denied by the allegations of the answer, and plaintiff’s affidavits were fully met by those of defendant. . Held, that the inference arising from the fact that defendant had already placed, from point to point, from 28d to 17th street on Broadway, poles and wires on them, the pole on the corner of Broadway and 17th street having the end of the wire twisted *281about it, coupled with the averments in the answer that the defendant “ has been and is authorized to erect its poles and place wires thereon upon Broadway at the several points and places mentioned in the complaint and in front of the premises therein described,” being the plaintiff’s premises, makes a preponderance of evidence in plaintiff’s favor.
Decided February 2, 1885.
When the poles are to be used as well for private purposes as for public ones, and it does not appear that a pole about to be erected in front of plaintiff’s property would be necessary for the public use, its erection is restrainable by injunction, as being an infringement of plaintiff’s right of property.
Before Sedgwick, Ch. J., and Truax, J.
Appeal from order of injunction.
The order enjoined the defendant from placing in the street, in front of plaintiff’s house, a pole intended to sustain wires to conduct electricity for the purpose of light. ,
The facts sufficiently appear in the opinion.
Butter, Stillman & Hubbard, attorneys, and Thomas H. Hubbard, of counsel for appellant,
upon the questions discussed by the court, argued :—I. The denial of intent to do an act would not countervail, upon an application of this kind, proof that the act was, in fact, being done. The intent in such a case would be inferred from the act. But where, as in the case at bar, there is no proof of any act, the denial of intent does countervail the plaintiff’s charge of intent. The mere denial by a man of his intention to do an act, or to infringe a right, will not prevent the court from interfering ; but if a man asserts positively that it is not his intention to do a certain act, or to infringe a certain right, and there is no evidence to show any intention on his part to do the act or infringe the right, the court will not interfere ” (Kerr on Injunctions, ch. 15, § 2, ""p. 198, and cases there cited). This court has applied the law as stated above in the case of Reiff v. Western Union Telegraph Co., decided by Judge Arnoux, December 28, 1882., There, as here, the court was asked to accept inferences in place of facts and to grant the injunction, because it could only prevent or impede the carrying out of a project which *282the defendants aver they do not entertain. But this court denied the motion, and said it would be far better to abolish all courts of equity, and leave injured parties to then-actions at law for damages, than to permit such use of equity powers.
II. The defendant has the right to erect poles in front of the plaintiff’s premises, under the supervision of the department of public works. The plaintiff’s rights are only those of abutting owners. The case of People v. Kerr (25 N. Y. 188), and Story v. N. Y. El. R. R. Co. (90 N. Y 122), show that the state and the city together have full ownership and control of the streets, and that the right of the abutting owner is to insist that the streets shall not “ be extinguished,” but shall be kept open and used as public streets are, and ought to be. In other words, the easement of the abutting owner, which the Story case holds to be property, is subject to all street uses. For such uses payment was made to property owners when the streets were opened. Abutting owners can have no further payment for such uses, nor can they enjoin such use. Their right of compensation or objection implies only to some appropriation of the street to uses injurious to the abutting proprietors, and to which public streets have not been and ought not to be put. But the use of a street for fighting is and has always been considered a street use. In the Story case the court says : “ Very ancient usage permits the introduction under it ” (the street) “of sewers and water pipes, and upon it, of posts for lamps.” Of these things an abutting owner could not complain (90 N Y. 161). The court also recognized “ the propriety of extending the law of city ways to meet the demands of a progressive civilization.” The structures of the defendant are for the convenience and benefit of the public, and to meet its needs. It is no answer to say that the street may be lighted in some other or even in a better way. Such a position enables the abutting owner to enjoin the use of oil lamps for public ways, if he can satisfy a court that gas lighting is preferable; or to *283enjoin the use of lamp posts for gas lighting, if he can show that calcium lights can be arranged at intervals in such way as to furnish the same illumination, and dispense with the posts. The fact is, however, that the municipal authorities must decide what kind of light shall be allowed in the streets, and such is the law. The situation, then, is as follows, viz : The plaintiff has a right to require the owners of the street to use it as a street. The use which the owners have allowed is one declared by law to be proper for a street, and is for the public convenience (See Tompkins v. Hodgson, 2 Hun, 146 ; Greene v. N. Y. Central & H. R. R. R. Co., 65 How. Pr. 154).
III. To authorize the erection of its poles, the defendant refers to the law and the city ordinances. Chap. 512, Laws of 1879, p. 175, is an authorization for the defendant to do what the plaintiff claims it has no right to do, and it is an authorization from the power which has full control of the subject treated (People v. Kerr, 27 N. Y. 188; People v. Bowen, 30 Barb. 24; affirmed, 21 N. Y. 517). The authorization would be complete and sufficient in itself if it did not specify that the consent of the municipal authorities should be had. The consent of the municipal authorities was obtained. The resolution of the board of aldermen, adopted May 3, 1881, authorizes the company, among other things, to erect lamp posts in the streets, avenues, parks and public places of the city, for the purpose of conveying, using and supplying electricity or electrical currents. The decision of Judge Haight, and of the general term in the McManus case are adjudications of the defendant’s right by a court of co-ordinate jurisdiction, and the same question has been decided favorably to the defendant by this court in the case of Smith v. U. S. Illuminating Co. : People ex rel. McManus v. Thompson (32 Hun, 93).
Chittenden, Townsend & Chittenden, attorneys, and James M. Townsend, Jr., of counsel for respondent,
on the questions considered by the court, argued:—I. Neither *284the act of February 16, 1848, c. 37, nor the act of June 16, 1879, c. 512, either alone, or as amended by the act of April 17, 1882, c. 73, nor any other act of the legislature can protect the defendant, because it is not in the power of the legislature to gratuitously divert the streets to a use other than a street use, and the erection of electric light poles is not such a use (Story v. N. Y. El. R. Co., 90 N. Y. 123. Opinion of O’Gorman, J., in the case at bar; Met. Telephone & Telegraph Co. v. Colwell Lead Co., 18 J. & S. 488.)
There is nothing to show, and defendant has carefully avoided mating any statement, that the poles already erected adjacent to plaintiff’s premises, and the particular poles threatened to be erected in front of and over and upon plaintiff’s premises have any connection with lighting the streets, under any contract with the city, and in the absence of such showing, poles bearing electric wires can in no event be deemed to lie a street use (Metropolitan, &c. Co. v. Colwell Lead Co., supra).
II. Even if the legislature had conferred upon the defendant the fullest power it could give, and the municipal authorities had united in granting all that it was in their power to grant; still, even such a combined grant of power would merely exempt the defendant from liability to suits, civil or criminal, at the instance of the state, and would not affect any claim of a private citizen for any special inconvenience and discomfort not experienced by the public at large, in which case such abutting owner is entitled to an injunction until his damages are ascertained and paid (Baltimore & P. R. Co. v. Fifth Baptist Church, 2 U. S. S. C. Rep. 729 ; Story v. N. Y. El. R. Co. supra; Cooley Cons. Lim. 702 ; Dusenbury v. Mutual Tel. Co., supra).
III. The defendant had intended just before the injunction was granted to construct the line in front of plaintiff’s premises. 1. It admits in its answer that it had obtained a permit to do so. 2. The line was built above and below plaintiff’s premises, and was left in an unfinished *285state each side of them. 3. The connection of these two unfinished ends was to be made, as the defendant’s president said, “if the property owners did not make too much trouble.”
The property owners had made the trouble alluded to when the injunction was granted and the answer verified after the injunction was granted, truly stated that there was no intention then to complete the line.
By the Court.
Sedgwick, Ch. J.
The learned counsel for appellant argues that there is no legal and sufficient evidence that the defendant was about to place a pole for the purpose of sustaining wires, in front of the house of plaintiff. This is argued because the allegations of the complaint on that subject are fully denied by allegations of the answer, and the affidavits for plaintiff on the point are fully met by affidavits for defendant. There are, however, two things that make a preponderance in favor of plaintiff. The first is, that the defendant had already placed, from point to point, from 11th to 23d streets on Broadway, poles and wires on them. The pole on Broadway and TTth street had the end of the wire twisted about it. The continuation of the line, in the direction it had already taken, would involve carrying the line in front of plaintiff’s house. These facts are to be connected with the second consideration, that the answer of defendant avers that by license or permit of the department of public works, “the defendant has been and is authorized and permitted to erect its poles and place wires thereon, upon Broadway in said city, at the several points and places mentioned in the complaint and in front of the premises therein described.” The answer, with the testimony, sufficiently proves that the object-of the incorporation of defendant and of the obtaining of the permit, was the pecuniary benefit to the defendant. It is to be inferred that the defendant was about to do that which it had obtained the permit to do.
The defendant also maintains that the use they were *286about to make of the street was not inconsistent with the public use of the street, and therefore no property of the plaintiff would be taken, or right of property infringed. It may be assumed, while not necessary to decide, that the proposition of law involved is valid, yet the ground of fact is to be examined. Under certain acts specified in the answer, it avers, that by said acts it is authorized, among other things, to lay, etc., wires, etc., with the necessary poles, on, etc., the streets, etc., of cities, etc., for conducting and distributing electricity, etc., then it avers that its business is to furnish electric lights to the public ; that it lights various streets in the city of New York, under contract ; that it also furnishes lights to numerous individuals and corporations residing and carrying on business in said city, and that its said business cannot be carried on without the úse of said poles and wires. Its business,, that is, is to furnish light to the city corporation for the public fighting of the streets, and to private individuals to light private houses. The former may involve a public and ordinary use of the street; the latter would involve a use of the street for private purposes. On the plaintiff showing that the defendant, a private corporation, is about to obstruct the streets with poles, etc., it would appear prima facie, that it was without authority to do so. The defendant, to absolve itself from responsibility, must show the authority. Its evidence on this point is most general and does not show that every part of its proposed work is necessary or highly convenient for both the public and the private use. It is entirely consistent with the testimony, that the particular pole and wire that would be in front of plaintiff’s house, would not be necessary to the public use.
Order affirmed, with costs.
Truax, J., concurred.