Potomac Electric Power Co. v. Wall

Urner, J., delivered the opinion of the Court. The purpose of this suit is to compel, by mandatory injunction, the removal by the Potomac Electric Power Company of a number of poles which it is alleged to have erected without authority on land of the plaintiff along the course of a public road in Montgomery County. The defendant’s answer asserted that the poles are located in the margin of a public road, where the defendant has a franchise to erect and maintain them for the purposes of the electric light and power business in which it is engaged as a public service corporation, and that the plaintiff has no right to require the removal of the poles, but is limited to the recovery of damages for any injury to her property caused by their erection and maintenance, it being denied, however, that any such injury has resulted. It was further averred in the answer that the poles were erected with the plaintiff’s “permission and license.” But it was admitted that she subsequently made a request for their removal, with which the defendant has not complied.

The court below found as a fact, from the evidence, that the poles are located on the plaintiff’s land beyond the proved limits of the public roadway, and their removal was ordered on the ground that such an occupation of her property could not be rightfully con- ²³² turned against her will. The road in question, for nearly sixteen hundred feet of its length, extends along the southern margin and within the lines of the plaintiff’s twenty-five acre tract of land. Prior to the year 1919 the road was defined by fences on both sides, hut in that year the plaintiff planted a hedge to take the place of the fence along the side of the road nearest to her residence. It was her belief then, according to the testimony, that this fence marked the southern line of her property.

In order to allow sufficient space for the hedge to spread, within the understood limits of the plaintiff’s land, it was planted about two and one-half feet north of the fence. Later in the same year the plaintiff had the fence removed. In the fall of 1923 the poles in controversy, of which there are fourteen, were erected in close proximity to the hedge, on its southern side, along the top of a sodded bank, and from five to ten feet distant from the traveled portion of the roadway. A guy wire attached to one of the poles is anchored beyond the hedge in the plaintiff’s grounds.

Cross-arms supporting the service wires extend from the poles over the hedge. The poles form part of a branch line of the defendant serving two of its patrons. The consent of the plaintiff to the erection of the pole line was not requested. While the wires were being strung, the plaintiff told the defendant’s foreman, as she testified, that the poles were placed too close to the hedge, but he replied that the road was thirty feet wide and that the hedge was on the “county line.” It appears that the poles were erected at a measured distance of fifteen feet from the middle line of the used roadway, and that most of them were located north of the line on which the fence replaced by the hedge had formerly stood.

Some of the poles have been partly surrounded by the hedge, as it has grown in breadth. In selecting the location of its poles along the road on which the plaintiff’s land abutted, the defendant acted upon the supposition that the road area had a legal width of thirty feet and that its northern line could he ascertained by measuring fifteen feet from the middle of the traveled way. This ²³³ theory is sought to be supported by the statutory provision (Code, art. 25, sec. 151) that all roads opened under the article cited shall be thirty feet wide, and by the authorization to the county commissioners, in sections 459 and 460 of the Local Code of Montgomery County, to accept, by recorded declaration, and to maintain, roadways dedicated, or subjected for twenty years to public use, provided they are not less than thirty feet in width. There is no evidence that the road in question was ever intended to be thirty feet wide by dedication or formal acceptance.

It is a road which has been used by the public and kept in repair by the county for many years, but there is no indication in the record that the northern limit of the road space was ever farther from the middle of the used roadway than the old fence which