On appeal from the Essex County Circuit Court.
For the appellant, Joseph Zemel.
For the respondent, Smith & Slingerland.
The opinion of the court was delivered by
BODINE, J. Plaintiff owning property on Springfield avenue, Newark, sued to recover damages because of the placement, under the sidewalk in front of his premises, of conduits for the purpose of carrying wires used in telephonic communications pursuant to legislative authority (Comp. Stat., p. 5314, § 8) and municipal permit. The conduits are nine feet three inches below the surface of the sidewalk and form an important link in the telephone system throughout northern New Jersey and the United States. Because of the existence under the roadway, of sewers, water pipes, gas mains and electric light and power conduits, and to avoid interruption of vehicular traffic, the municipal authorities directed the placement of the conduits under the sidewalk. The conduits carry wires not only to serve the residents along Springfield avenue, but are used also by telephone subscribers everywhere and by the government in the control of traffic along the avenue and the detection of crime.
The case was tried on an agreed state of facts before the court without a jury. There was no damage suffered by the
plaintiff other than an interference with its claimed right in the fee over which the public had an easement. The learned trial judge entered judgment for the defendant, holding that the placement of conduits was within the four corners of the public easement and in this there was no error.
"Apart from any statutory provisions the owner of the soil of a highway has right to all above and underground, except only the right of passage for the king and his people. Goodtitle d. Chester v. Alker and Elmes (1757), 1 Burr. 133, and may exercise all rights of ownership not inconsistent with the public right of passage." 16 Halsbury, the Law of England, p. 55.
In early days the king and his people passed on foot or on horse and that was the extent of the servitude. The land owner did not build tall buildings on his land, but used the same for residences, the tillage of the soil, or the sale of small wares. Society was less complicated and there were neither sewers, gas pipes, water pipes, electric wires or conduits. Communication was slow and difficult, and the surface of the highway was sufficient for all public purposes. To-day such a surface use is insufficient.
Chief Justice Beasley said in State v. Laverack (1870), 34 N.J.L. 201 (at p. 206): "The right of the public in a highway consists in the privilege of passage and such privileges as are annexed as incidents by usage or custom, as the right to make sewers and drains, and lay gas and water pipes. These subordinate privileges are entirely consistent with the primary use of the highway, and are no detriment to the land owner. But I am not aware of any case in which it has been held that the public has any right in a highway, which is incongruous with the purpose for which it was originally created, and which at the same time is injurious to the proprietor of the soil."
In Nicoll v. Telephone Co., 62 N.J.L. 733, Mr. Justice Dixon said: "The right of a telephone company to erect a telephone line within the limits of a public highway, upon land the fee of which is owned by private persons, imposes an ...