(147 N.E.) insurance company to come in as a party [9] The defendant cannot rely as a defense in this case on the issue that the cause of the fire was different from that found by the jury. The original litigation settled that under the terms of G. L. c. 160, § 234, for the purpose of the present action. The principle of Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 205, 89 N. E. 193, 40 L. R. A. (N. S.) 314, is inapplicable to the facts here disclosed and the statutory liability here established. It follows that the rulings were right. In accordance with the terms of the report judgment is to be entered for the plaintiff for the sum of $2,500 with interest from the date of the writ. So ordered. OHIO BELL TELEPHONE CO. v. WATSON only the right of improvement thereof and uninterrupted travel thereover. 2. Highways 83-Abutting landowner has property right in shade trees along highway not to be interfered with, without his consent or first making compensation. An owner of land abutting upon a country highway, whose title extends to the center of the road along the side of which are located shade trees, has a property right in such trees, and the same may not be interfered with, unless by consent of such owner or first making compensation according to law. Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578, followed and approved. 3. Eminent domain 119(7)-Erection of telephone poles on country highway is additional burden on easement and invasion of rights of abutting property owner. The erection and maintenance of telephone poles and wires within the limits of a country highway is an additional burden upon the easement and an invasion of the property rights of the abutting owner, for which he is entitled to compensation. 4. Eminent domain 275(1)—Further construction of telephone wires along highway restrained and removal of lines ordered, unTess owner be compensated or his consent obtained. Where along a rural highway a telephone company has erected poles, done necessary cutting and trimming of a shade tree to permit the placing of telephone cables on said poles, such construction, however, not interfering with the access, light, and air of the adjoining against the protest of such owner, an injuncowner, but being without the consent and tion will be granted at his instance restraining the further construction of such telephone line and requiring the removal of the poles and cables already in place, unless compensation shall be made to such owner or his consent obtained. Jones and Robinson, JJ., dissenting in part. Error to Court of Appeals, Trumbull County. Action for injunction by the Watson Company against the Ohio Bell Telephone Company. Judgment for defendant was reversed on appeal, and injunction granted, by the Court of Appeals, and defendant brings error. Affirmed.-[By Editorial Staff.] The original action in this case was one for injunction to restrain the Ohio Bell Tel(Supreme Court of Ohio. April 21, 1925. Re- ephone Company from erecting certain poles hearing Denied May 28, 1925.) (Syllabus by the Court.) 1. Highways 80-Fee to country highway is in abutting property owner; rights of public therein being limited to improvement and traffic thereon. In this state the fee to the country highway is in the abutting owner, and the public has and stringing wires along the property of the Watson Company, lying outside a municipality in Trumbull county, Ohio. The sole question presented is whether or not the telephone line constructed and op erated by a public utility within the limits of a rural highway in this state is an additional burden, so that the rights of the abut For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes icy, thus making it a part of its contract of insurance, gives it no sanctity superior to rights established under the statute, which are part of a heavy responsibility imposed upon the railroad corporation by the legislative department of government. [5] In case a railroad corporation is held liable in damages for injuries to property by fire communicated by its locomotive engines, the insurance company has no right to subrogation either in equity or under the terms of the standard policy to the rights of the insured. That was taken away by St. 1895, c. 293, now in G. L. c. 160, § 234, as has been hitherto decided. Lyons v. Boston & Lowell Railroad, 181 Mass. 551, 64 N. E. 404; New England Box Co. v. New York Central & Hudson River Railroad, 210 Mass. 465, 470, 97 N. E. 140. [6, 7] The contract of insurance was made subject by implication to the terms of G. L. c. 160, § 234, as well as to all other valid ance is subject to a large measure of legislative regulation. The insurance company can make no complaint of valid statutes in existence and governing its contract at the time it was made. Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, 1 A. L. R. 1374; National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71, 43 S. Ct. 32, 67 L. Ed. 136. fendant now relies. If the construction of that statute for which the defendant contends is sound, the railroad corporation could never put itself in a position to secure the benefits of the statute in those instances where the insured insists upon collecting his full damages from the railroad corporation or where for any reason the insurer does not pay the loss under the policy before the trial of the action against the railroad corporation to recover damages from it. Where the loss by fire is less than the amount of the policy, naturally the insured will collect from the insurance company. The clause of the policy as to assignment by the insured would then operate. But where the loss exceeds the policy, circumstances might make it wise for the insured to bring his action in the first instance against the railroad corporation and not to complicate that action by acceptance of the amount due on the policy. [3] The words of the statute, G. L. c. 160, § 234, make plain the purpose of the Legisla-provisions of law. The business of insurture that the railroad corporation shall get the benefit of the insurance in one or the other of two ways, either (1) in case the insurance has been paid to the insured before the trial of the action against the railroad, by deducting the amount so paid from the damages otherwise recoverable against it, or (2) in case the insurance, has not been paid, by giving to the railroad corporation an assignment of the policy and permitting action to be brought by it on the policy. The contention of the defendant makes the second branch of the statute of no force or effect. On its theory damages can never be collected of it on the policy unless the insured assigns to it the policy. That cannot be done if the insured already has assigned the policy to the railroad corporation. That is to say, there can never be recovery by the railroad corporation from the insurance company under the policy. Such a result ought not to be imputed to the Legislature in enacting a statute unless no other result can be reached reasonably. Ordinarily the party subrogated has and acquires no greater rights than those of the party for whom he is substituted. Jackson Co. v. Boylston Ins. Co., 139 Mass. 508, 512, 2 N. E. 103, 52 Am. Rep. 728. This case does not involve the doctrine of equitable subrogation, but the interpretation of a statute bearing only a kind of similarity to that doctrine. [4] The circumstance that in the case at bar the defendant tendered to Taylor the amount due on the policy upon condition of assignment of it by him to the insurer is not in terms provided for in the statute. It does not avail the defendant. The statutory words apply equally to such a state of facts as to a state of facts where for any other reason the insurer does not pay the amount due on the policy before the trial of the action against the railroad corporation. The insertion of the clause upon which the defendant relies in the standard form of pol The conclusion from all these considerations is that the statutes conferring rights upon the railroad corporation, G. L. c. 160, § 234, is operative even though the railroad corporation is not in a position to comply with the clause in the statutory form of policy requiring assignment by the insured to the insurer of rights therein described and that that clause in the policy is subject to the implied exception wrought by section 234 and is not effective when the facts arise set forth in that section. The right of the insurer to the assignment from the insured required by the policy does not exist on those facts. [8] The defendant has pleaded by way of defense that the fire which caused the damage to Taylor was caused by the negligence of the section men of the defendant in setting and guarding grass fires. The statutory right of the plaintiff to recover on the policy of insurance in the circumstances here disclosed is not subject to that defense. The right of the plaintiff springs into being when it has been held liable in damages to a person whose buildings or other property have been injured by fire communicated by its locomotive engines. As between the plaintiff and Taylor that matter was settled by the finding of the jury to the effect that Taylor's property was so injured. The defendant was notified of the bringing of the action by Taylor against the present plaintiff before it was referred to the auditor, but was not a party thereto and did not participate in the trial of that case. That is all that the record shows upon this aspect of the case. That is not a binding notice to the (147 N.E.) insurance company to come in as a party and undertake the prosecution or defense of Consolidated Hand Method Last that cause. ing Machine Co. v. Bradley, 171 Mass. 127, 50 N. E. 464, 68 Am. St. Rep. 409; New York Central Railroad v. Wm. Culkeen & Sons Co., 249 Mass. 71, 77, 144 N. E. 96. Nevertheless, the defendant had actual notice of that action. It did not seek to intervene in that action to protect its rights. The effect of an application of such intervention and refusal by the court to allow it is not presented on this record, and no intimation is made on that point. The statute is absolute in its terms. There is no requirement that the insurance company be a party to such litigation. When the railroad corporation has been held liable for the statutory cause, its right of action against the insurance company becomes fixed, subject only to such ordinary defenses as would be open between the insured and the insurer. The record of the judgment in the action of Taylor against the railroad corporation, together with the special answer of the jury, established in this respect the right of the plaintiff and the liability of the defendant. The case on this point is governed in principle by Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, 1 A. L. R. 1374. Merchants' Mutual Automobile Liability Ins. Co. v. Smart (decided March 2, 1925). 267 U. S. 126, 45 S. Ct. 320, 69 L. Ed. -; New York Life Ins. Co. v. Hardison, 199 Mass. 190, 85 N. E. 410, 127 Am. St. Rep. 478. [9] The defendant cannot rely as a defense in this case on the issue that the cause of the fire was different from that found by the jury. The original litigation settled that under the terms of G. L. c. 160, § 234, for the purpose of the present action. The principle of Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 205, 89 N. E. 193, 40 L. R. A. (N. S.) 314, is inapplicable to the facts here disclosed and the statutory liability here established. It follows that the rulings were right. In accordance with the terms of the report judgment is to be entered for the plaintiff' for the sum of $2,500 with interest from the date of the writ. So ordered. OHIO BELL TELEPHONE CO. v. WATSON (Supreme Court of Ohio. April 21, 1925. only the right of improvement thereof and uninterrupted travel thereover. 2. Highways 83-Abutting landowner has property right in shade trees along highway not to be interfered with, without his consent or first making compensation. An owner of land abutting upon a country highway, whose title extends to the center of the road along the side of which are located shade trees, has a property right in such trees, and the same may not be interfered with, unless by consent of such owner or first making compensation according to law. Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578, followed and approved. 3. Eminent domain 119(7)-Erection of telephone poles on country highway is additional burden on easement and invasion of rights of abutting property owner. The erection and maintenance of telephone poles and wires within the limits of a country highway is an additional burden upon the easement and an invasion of the property rights of the abutting owner, for which he is entitled to compensation. 4, Eminent domain 275(1)-Further construction of telephone wires along highway restrained and removal of lines ordered, unless owner be compensated or his consent obtained. Where along a rural highway a telephone company has erected poles, done necessary cutting and trimming of a shade tree to permit the placing of telephone cables on said poles, such construction, however, not interfering with the access, light, and air of the adjoining against the protest of such owner, an injuneowner, but being without the consent and tion will be granted at his instance restraining the further construction of such telephone line and requiring the removal of the poles and cables already in place, unless compensation shall be made to such owner or his consent obtained. Jones and Robinson, JJ., dissenting in part. Error to Court of Appeals, Trumbull County. Action for injunction by the Watson Company against the Ohio Bell Telephone Company. Judgment for defendant was reversed on appeal, and injunction granted, by the Court of Appeals, and defendant brings error. Affirmed.-[By Editorial Staff.] The original action in this case was one for injunction to restrain the Ohio Bell TelRe-ephone Company from erecting certain poles 1. Highways 80-Fee to country highway is in abutting property owner; rights of public therein being limited to improvement and traffic thereon. In this state the fee to the country highway is in the abutting owner, and the public has and stringing wires along the property of the Watson Company, lying outside a municipality in Trumbull county, Ohio. The sole question presented is whether or not the telephone line constructed and op erated by a public utility within the limits of a rural highway in this state is an additional burden, so that the rights of the abut For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ting landowner must be acquired, either by The Watson Company, a corporation, owns a farm in Trumbull county, through which there passes a public highway known as Four-Mile Run road; its title running to the center of the road. The Ohio Bell Telephone Company began the construction of a line along said road, and wholly within its limits, and said construction did not interfere with the Watson Company's ingress or egress, or with its light or air. The telephone company had not procured the consent of the Watson Company, and had erected its poles, strung its wires, and was about to connect the same with poles erected on either side of the Watson Company's farm, when the present action was begun by the Watson Company, and a temporary injunction secured. In the trial in the court of common pleas, the court took the view that the telephone line was a proper highway use, dissolved the temporary injunction theretofore granted, and dismissed the petition. Appeal was prosecuted to the Court of Appeals, which court upon hearing made findings of fact and conclusions of law. Among the findings of fact is one to the effect that the location of the poles in no wise interfered with the Watson Company's present mode of ingress or egress, or with its light and air, and that within the limits of the highway and directly underneath the telephone company's line the Watson Company was possessed of a shade tree, through which the telephone company's cable was passed; that the telephone company in stringing its line trimmed some of the limbs of this tree, and that such trimming was no more than was necessary to provide proper clearance for the telephone company's cable line placed on said poles: and that this construction was without the consent of the landowner and was over its express refusal. of Four-Mile Run road upon which plaintiff's property abuts without plaintiff's consent or without first appropriating said right and making compensation to plaintiff therefor; that the defendant has no right to trim the trees of the Mile Run road, even though the same be necesplaintiff standing within the limits of Foursary for the proposed construction of its pole line and the stringing of its wires and cables' thereon without the consent of the plaintiff, or unless the same is duly appropriated and compensation paid or secured according to law." Upon such conclusions of law, the court perpetually enjoined the telephone company from erecting and constructing its poles and lines in front of the Watson Company's property without its consent, and ordered it to remove the poles, wires, and cables that had theretofore been strung along said highway. Error was prosecuted to this court to reverse such decree and judgment. Tolles, Hogsett, Ginn & Morley, of Cleveland, and Fillius & Fillius, of Warren, for plaintiff in error. H. H. Wickham, of Youngstown, for defendant in error. DAY, J. The question involved, in this case is well stated in the petition in error to be whether or not the erection of poles and wires by a telephone company within the limits of a highway outside of a municipality, and without the consent of the landowner, whose farms abut upon said highway, and whether or not the trimming of trees growing within the limits of the highway in front of the property of the landowner, where such trimming is necessary for the telephone line, constitutes a taking of property without compensation, contrary to section 19, art. 1, of the Constitution of the state of Ohio, and the Fifth Amendment to the Constitution of the United States. courts of this state; the basic subject of inThe question involved is not new to the quiry being, What are proper highway uses? [1] The fee to streets within municipal Among its conclusions of law the Court ities in Ohio rests in trust in the municipalof Appeals found: ity for street purposes, subject to the abut"(1) That the defendant, the Ohio Bell Tele- ting owner's rights to ingress and egress, phone Company, is a public utility engaged in light, and air. On the other hand, outside the business of supplying the public with local the limits of a municipality, the fee to the and long distance telephone service; that the plaintiff is the owner in fee of so much of Four-land in the rural highway rests in the abutMile Run road upon both sides of which its ting landowner, subject only to such rights property abuts; that plaintiff's ownership of Four-Mile Run road is subject to an easement in favor of the public to use the same for proper highway purposes; that the use by the defendant of so much of Four-Mile Run road upon which plaintiff's lands abut for the construction thereon of its telephone poles, wires, cables, and anchors is not à proper highway use, but that the same is an additional burden upon the property of the plaintiff; that the defendant has no right to construct its poles, wires, cables, and anchors within the limits of so much as are incident to and necessary for public passage, in other words, the right of the pub-. lic to improvement, maintenance and uninterrupted travel; the abutting owner having all right to all uses of the land not inconsistent with such right of improvement and travel. [2] Bearing upon the rights of the abutting owner in the country highway, two cases may be cited: In Dailey v. State, 51 Ohio St., 356-358, 37 (147 N.E.) N. E. 710, 712, 24 A. L. R. 724, 46 Am. St. Rep. | cussed in Callen v. Columbus Edison Elec578, Spear, J., said: tric Light Co., 66 Ohio St. 166, 64 N. E. 141, 58 L. R. A. 782, and Smith v. Central Power Co., supra. And, while it is argued that the rule should be the same as to both city streets and country highways, it may be remarked in passing that courts of this country are not uniform on the subject, and that a discussion of this question is not necessary to a solution of the problem presented herein. "Whatever may be the rule in other states, we have supposed that the question of the right in the highway of a landowner whose title extends to the center of the road is not an open one in Ohio. The question has been the subject of adjudication in a score of cases decided by this court, notably in the following: Bingham v. Doane, 9 Ohio, 167; Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cumminsville, 14 Ohio St. 523; Hatch v. Rail-Reference may be made, however, to Hays road Co., 18 Ohio St. 123; McClelland v. Miller, 28 Ohio St. 502; Railroad Co. v. Williams, 35 Ohio St. 168; Railroad Co. v. O'Harra, 48 Ohio St. 343. * "And, if right upon that point, the result would seem to follow, as further charged by the judge, that the landowner had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company.' The rule of law rests upon the clear ground that the appropriation of the public highways for the purpose of telegraph lines was a new use. The highways were originally dedicated for the purposes of public travel, and not for the purpose of telegraph lines. Hence the new use imposed an additional burden. The statutes of Ohio grant to telegraph companies secondary and subordinate, rather than co-ordinate, rights, with travelers, which fact is apparent in the provision that the lines are to be so constructed as not to interfere with the public use of the highways. Railway Co. v. Telegraph Association, 48 Ohio St. 390." And in Schaaf v. Cleveland, M. & S. Ry. Co., 66 Ohio St. 215, 64 N. E. 145, the second syllabus recites: "The construction and operation of an electric plant in connection with such railway, and on the same side of the traveled public roadway, for supplying heat, power, and light to consumers for profit, constitutes another additional burden, which is an invasion of the plaintiff's property rights." While the exact facts in these cases are not the facts in the case at bar, yet we are disposed to accept the law therein declared as a statement of the general principles applicable in this case; that is, that the rights of the abutting owner in the highway outside a municipality are paramount to everything except the right and uses of the public for improvement and travel. Our attention is called to the case of Smith v. Central Power Co., 103 Ohio St. 681, 137 N. E. 159, and plaintiff in error places considerable stress upon the same as applicable in principle to the case at bar. The concurring opinion of Marshall, C. J., in Smith v. Central Power Co., relates to the rights of abutting owners in city streets, and does not undertake to decide the law with reference to the rights of abutting owners on purely rural and country highways. The rights of abutting owners in municipalities are not involved in this case. Such rights are dis v. Columbiana Telephone Co., 21 Ohio Cir. Ct. R. 481; Chesapeake & Potomac Telephone Co. v. Mackenzie, 74 Md. 36, 21 A. 690, 28 Am. St. Rep. 219; 10 Ruling Case Law, 94, 95; Curtis, Law of Electricity, § 279, p. 400. [3] It is urged that the erection and maintenance of telephone poles is not an inconsistent use of the highway, and that modern conditions require new and modern means unknown at the time of the original dedication of the highway. Our views upon this point are so clearly expressed by Mr. Justice Peckham in Eels v. American Telephone & Telegraph Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640, that we quote at some length therefrom, beginning at page 138 (38 N. E. 203): "We think neither the state nor its corporation can appropriate any portion of the public highway permanently to its own special, continuous, and exclusive use by setting up poles therein, although the purpose to which they are to be applied is to string wires thereon and thus to transmit messages for all the public at a reasonable compensation. It may be at once admitted that the purpose is a public one, although for the private gain of a corporation; but the Constitution provides that private property shall not be taken for public use without compensation to the owner. Where land is dedicated or taken for a public highway, the question is, What are the uses implied in such dedication or taking? Primarily, there can be no doubt that the use is for passage over the highway. The title to the fee of the highway he retains the ownership of the land, subject generally remains in the adjoining owner, and only to the public easement. If this easement do not include the right of a telegraph company to permanently appropriate any portion of the highway, however small it may be, to its own special, continuous, and exclusive use, then the defendant herein has no defense to the plaintiff's claim. Although the purpose of a public highway is for the passage of the ing such highway was not taken for the purpublic, it may be conceded that the land formpose of enabling the public to pass over it only in the then known vehicles, or for using it in the then known methods for the conveyance of property or the transmission of intelligence. Still the primary law of the highway is motion, and whatever vehicles are used, or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelliwhich must pass along the highway, either on gence be transmitted by some moving body or over, or perhaps under, it, but it cannot permanently appropriate any part of it. ** "We cannot agree that this permanent ap * |