Board of Trade Telegraph Co. v. Barnett

Citations

• 107 Ill. 507
• 1883 Ill. LEXIS 290

Syllabus

<p>1. Action—trespass—at the suit of the owner of the fee in a highway, for an improper use of the highway. Trespass quare clausum fregit was brought by the owner of land abutting upon a public highway, in which he was also owner of the fee, against a telegraph company for entering upon the highway and erecting telegraph poles thereon without the consent of the plaintiff. It was held, the action would lie.</p> <p>2. Eminent domain—granting use of highway for erecting telegraph poles—rights of abutting land owner who also holds the fee in the highway. It has been held that where the fee of a street in a town or city remains in the abutting land owner, the corporation may grant the right to a railway company to lay its track along or across the street, but the company will avail of this privilege at its peril. If, in laying its track, it causes private injury to him who owns the fee in the adjoining premises, it must make good the damages sustained. A distinction in this respect obtains where the municipality granting the right to lay the track owns the fee in the streets, and where the fee remains in the abutting land owner. But it matters not, in the application of the principle, in what manner the public acquired the easement over the land,—-whether by condemnation or by dedication.</p> <p>3. The same principle applies in case of the use of an ordinary highway or public road, in which the abutting land owner is the owner of the fee in the highway, for the erection of telegraph poles upon which to place the wires to be used for telegraph purposes.</p> <p>4. Authority is given by statute to all telegraph companies to erect poles on which to place their wires, on all highways or public roads, by first obtaining the consent, in writing, of the county board of the county in which such highway is situated. But this permission by the county board must be understood as given subject to the constitutional inhibition that “private property shall not be taken or damaged for p