The Village of Hempstead, Respondent, v. Ball Electric Light Company, Appellant

The Village of Hempstead, Respondent, v. Ball Electric Light Company, Appellant. Electric light lamps,- poles and wires constituting an unlawful obstruction in a highway — the trustees of a village may maintain an action in its name to compel their removal. In an action brought, by the trustees of a, village in its name to compel the removal from its streets of .the poles, wires and electric lamps of an electric light -company, upon the ground that they constituted an unlawful obstruction . in the highway, amounting to a public nuisance, it appeared that a contract was entered into between the plaintiff and the defendant, by which the defend-, ant agreed to furnish electric light for a period .of five years, but that the . defendant had ceased to-furnish light, before the expiration of that timé, under, a claim that such agreement was void, and that it had neglected to remove its poles, wires and lamps, although requested to do so .by the plaintiff. Held,, that, under the circumstances,, the disused poles, wires and "lamps constituted unlawful obstructions, which it was,the duty of the defendant to remove;. That the action could not have-been maintained prior to the .enactment of the Highway Law (Chap. 568 of. 1890), but that section' 15 of' that law, providing that “ commissioners of highways may bring an action in the name of the town against any person or corporation to sustain the rights of the public in and to-any highway in the town, and to enforce the performance of any duty enjoined ■ • upon any person -or corporation in relation thereto,” construed in connection with section 1 of title 7 of the Village Law (Chap. 291 of 1870, as amended by chap. 870 of 1871), which provides that “a village incorporated under -this act shall constitute- a separate highway district within its corporate limits, exempt" from the superintendence of any one except the board of trustees, who shall be commissioners of highways in and for sttch village, and shall have all the powers of commissioners of highways of "towns in this State, subject to this act,” was sufficient authority for its maintenance; ' ' That the rule that “that which is exclusively a common or public nuisance cannot lawfully be abated by the private act of individuals ; the remedy is an indictment, a criminal prosecution, unless some other remedy has been provided by statute,” di.d not apply to this case-^-a statutory remedy having'been provided. ■ ■ ■ Appeal by tbe defendant, tbe Ball Electric Light Company, from a judgment of tbe Supreme Court iu favor of the plaintiff, entered in the office of the clerk of the county of Queens on the -25th day of February,; 1896, upon the decision of- the court rendered after a' trial at the Queens County Special Term, which judgment required the removal of all the defendant’s pole's, wires and electric lamps from the streets of the village of Hempstead. Van Vechten ds Delavan, for the appellant. Weller d; Davison, for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: The purpose of this action was to procure the removal from the streets of the village of Hempstead of certain poles, wires and lamps placed therein by the defendant, in order to furnish electric light to the village. By the terms of a contract made in August, 1892, between the parties to this action, the Ball Electric Light Company undertook to erect in the village an electric light plant and furnish certain arc and incandescent lights without unnecessary interruption for live years from October 15, 1892, for which it was to receive a stipulated compensation. The village was lighted, under this agreement, up to the end of July, 1894, when the defendant ceased furnishing lights, on the ground that the paper already mentioned, purporting to be a contract, was absolutely null and void. Since that time the poles, wires and lamps of the defendant in the village streets have been wholly disused for illuminating purposes, and the defendant, although duly requested so to do, has neglected to remove them. The present action was instituted by the trustees of the village, in its name, to compel their removal on the ground that they constitute an unlawful obstruction in the highway j amounting to a public nuisance. The plaintiff prevailed upon the trial at Special Term. The defendant, in asking this court to reverse tile judgment, relies upon two main grounds: First, that the acts complained of do not constitute a nuisance, and, second, that an action to abate a nuisance cannot be maintained by this plaintiff, but if maintainable in equity at all must be in a suit instituted upon the relation of the Attorney-General or in the name of the People of the State. The cases cited in behalf of the appellant in support of the proposition that the acts complained of do not constitute a nuisance, so far as they relate to telegraph poles or poles for electric lighting, apply only to such structures when placed in the public streets or highways by legislative authority, and when used for the purposes' for which they were intended. They afford no sanction whatever to the idea that a corporation which has availed itself of the permission of the municipal authorities to occupy a portion of the highway with an electric lighting plant, upon its .express undertaking to furnish the- municipality with light, can lawfully insist upon maintaining the structures-which.it has thus.erected after it has absolutely reftised to fulfill its contract and .supply the light. We entertain no doubt whatever that under such circumstances the disused poles, wires and lamps constitute. unlawful' obstructions which it is the duty of the corporation to remove. ■ As to the second point, the respondent recognizes the authority of Rozell v. Andrews (103 N, Y. 151), and concedes that such .an-action as this could not have been maintained by the. village trustees, in the name of the village, prior to the enactment of the Highway Law fOhapj 568, Laws.of 1890). Section 15 of the Highway Law provides as'follows:. “ Commissioners of highways may bring an action in the name of the town against any person or. corporation to sustain the ¡rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damages sustained or suffered, or expenses incurred by such town in • consequence of any' act or omission of any such person or corporation in violation of any law or contract in relation to such highway:” TheVillage Law (Chap. 291, Laws of 1870., tit. 7, § 1, as amended by chap. 870, Laws of 1871) declares that “A village ineorpoT .rated under this act shall constitute a separate highway district, within its corporate limits exempt from the superintendence of any one except the board of trustees, who shall be commissioners of highways ifi and for such village and shall have all the powers of commissioners of highways of towns in. this State, subject to this act.” - . ■ We think these two enactments,, taken together, authorize the maintenance of an action by the trustees of an incorporated village to-compel the'removal of an unlawful obstruction on the- highway which constitutes a nuisance. The grant of power to commissioners of highways, in section 15 of the Highway Law, is very broad, and, under the provision which we have quoted from the Village Law, the board of trustees are expressly declared tó be commissioners, of highways for the village, with all the.powers- of Commissioners of highways of towns. The phrase “ subject to this . act,” in the Village Law does not seem to be a limitation which has any bearing upon this question. As to the suggestion that the proper remedy is either by indictment or by an action instituted on the relation of the Attorney-General in the name of the People, it is sufficient to quote what was said hy Marvin, J., in the case of Griffith v. McCullum (46 Barb. 561-569), referred to with approval by the Court of Appeals in Lawton v. Steele (119 N. Y. 226-238): “ That which is exclusively a common or public nuisance cannot lawfully be abated by the private act of individuals. The remedy is an indictment, a criminal prosecution ; unless some other remedy has been provided by 'statute, as is the ease in some of our city a/nd village acts of mcorporation.” Here some other remedy has been provided for by statute, as appears from the provisions of the Highway Law and the Village Law, to which reference has been made. (See 6 App. Div. 610.) We may add that the right of the trustees of a village to maintain an equitable action, to restrain unlawful interference with a village highway, has already been upheld hy this court in the case of The. Town of North Hempstead v. Gallagher, in which the judgment was affirmed without an opinion at the June term. (See 6 App. Div. 610.) The judgment of the Special Term should be affirmed, with costs. All concurred. Judgment affirmed, with costs.