Appeal by plaintiff from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the October term, 1953. Reversed and remanded.
Opinion filed September 13, 1954. Released for publication
September 29, 1954.
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
This action, brought to recover damages for injuries inflicted by defendant to plaintiff's underground telephone cable, was tried without a jury, by the circuit court of Winnebago county, resulting in a judgment for the defendant, and the plaintiff appeals.
The evidence disclosed that the plaintiff is a public utility engaged in the telephone business in Rockford, Illinois. On August 16, 1948, the Rockford City Council issued to it an ordinance permit granting to the plaintiff the right to place buried cable in the parkway along Rural Street in the City of Rockford. Pursuant to this authority, plaintiff placed a cable consisting of twelve hundred pairs of individual wires protected by insulation and a jute covering at a depth varying from thirty to thirty-six inches and maintained this cable in good condition.
Defendant is a corporation engaged in construction work of various kinds and has operated in Rockford for many years. In the summer of 1950 it operated six crews and was engaged to do certain work in connection with the laying out of a new addition north of Rural Street in Rockford. Its work, among other things, included the laying out and grading of streets and the installation of a sanitary sewer in Bohm Court, a street lying north of Rural Street. This storm sewer was to run from a manhole south of Rural Street in the parkway along the west curb of Bohm Street and to and across Rural Street. On and prior to September 15, 1950, defendant operated a ditch-digging excavating machine known as a "hoe." On the evening of September 15, 1950, it moved this hoe to a place near the manhole in Bohm Street and left it there overnight. Previous to this time and during the day of September 15, 1950, the city engineer's surveying crew of the City of Rockford placed engineering stakes in the parkway along Bohm Street indicating where the trench which defendant was to dig was to be dug, and on the stakes marks were placed indicating the depth at which the excavation was to be made. On September 16, 1950, defendant commenced the excavation, after breaking the cement around the manhole, and had proceeded about six hundred feet, following the grade lines and stakes, when the trench hoe came in contact with plaintiff's cable and inflicted the damage to recover for which this action was instituted.
The evidence further discloses that the plans for this storm-sewer excavation were drawn by the city engineer of Rockford and during the latter part of July 1950, were handed to Charles Ind, president of defendant company. This plan showed the line of excavation and the depth to which the trench was to be dug but did not show any telephone cable or conduit. It further appears that after the underground cable was installed by appellant in 1948 the parkway was filled and seeded to grass, and there was no evidence on the surface of the ground that would indicate there was any telephone cable below the surface. Emery McKinney, an employee of appellee, operated the trench hoe in making this excavation, and he testified that he noticed nothing which would indicate the location of this telephone cable. Charles G. Ind, Jr., was superintendent on this job for the defendant, but it appears that he died prior to the trial of this action.
The complaint in this cause was filed on March 12, 1952, and consisted of three counts. The first count is based on the theory that the defendant was absolutely liable to the plaintiff and, as amended, alleged that the plaintiff was a public utility and on August 19, 1948, was granted written permission by the City of Rockford, as set forth in Ordinance Permit No. 50, to permanently place buried cables in a described parkway on the south side of Rural Street and in the vicinity of the intersection of Bohm Avenue and Rural Street in the City of Rockford, and that plaintiff, during the year 1949, installed a permanent 1212 pair, 24 gauge, jute-protected cable at the described location at a depth of approximately three and one-half feet under the ground surface. This count then alleged that defendant is a private corporation engaged in construction work and organized under the laws of Illinois; that it became its duty to refrain from using its excavating equipment in a manner which would injure or damage plaintiff's underground property as aforesaid; that disregarding its duty, defendant, while excavating a storm-sewer trench for and on behalf of the private owner of adjacent property, injured said cable, and as a direct and proximate result thereof, plaintiff sustained damage to the amount of $2,182.28, the actual cost to the plaintiff of repairing said cable.
Count two was in trespass quare clausum fregit and charged, among other things, that the defendant, with force and arms, on September 16, 1950, entered the close of the plaintiff and there operated a digging machine so as to cut and damage plaintiff's cable to the plaintiff's damage. The third count charged the defendant with negligence and, as amended, realleged the installation of this cable by the plaintiff, as set forth in the other counts. This count then averred that the plaintiff was at all times in the exercise of due care and caution for the safety of its property and charged that on September 16, 1950, defendant was engaged in excavating a storm-sewer trench at the described location; that it thereupon became the duty of defendant to refrain from negligently injuring plaintiff's property; that defendant disregarded that duty and carelessly, negligently, and improperly operated its excavating machine over the area of plaintiff's cable after having knowledge of its presence, or without having ascertained from the office of the city engineer of Rockford the location of said cable, or without having ascertained from the local office of the plaintiff the location of said cable after having been notified by plaintiff in writing so to do, or that defendant failed to inspect the area to be excavated in order to determine the existence of said cable. This count then concludes that as a direct and proximate result of said negligent conduct on the part of the defendant, defendant, while excavating at the described location, operated its digging machine so as to damage the cable of the plaintiff.
The trial court sustained defendant's motion to dismiss counts one and two, and defendant filed an answer to count three and two affirmative defenses. The answer of the defendant to count three was a general denial of the allegations of that count. In the first affirmative defense, the defendant alleged that in doing the excavation work it did, defendant had permission to do so by the City of Rockford and that the city furnished defendant with a plat of the area upon which no underground cable or conduit was shown and that the excavation was made within stakes placed by the city officials. The second affirmative defense alleged a release of liability by reason of a credit memorandum and set forth that after September 16, 1950, the president of defendant company was repeatedly billed by the plaintiff in the amount of $2,182.28, said bill purporting to be based on a claim of the plaintiff for expenses incurred in making repairs to this damaged cable; that on March 21, 1952, defendant received through the mail a credit memorandum issued by the plaintiff by which plaintiff credited the account of the defendant with the amount of $2,182.28. Plaintiff replied to these affirmative defenses denying the allegations of the first affirmative defense, and, as to the second affirmative defense, plaintiff averred that the credit memorandum was sent because of a mistake. Upon the issues thus made by the allegations of count three (the negligence count) and the answer thereto, a trial was had before the court without a jury. At the conclusion of the trial, the court found the defendant guilty of negligence in failing to ascertain the location of plaintiff's cable. The court also found that it was the duty of the plaintiff to inform defendant of the existence and location of its conduit and cable and also the duty of the plaintiff to check the records in the city engineer's office in order to determine whether a permit had been granted defendant to excavate at the place where plaintiff's conduit and cable were located. Failing to do this, the trial court concluded that plaintiff was guilty of contributory negligence which precluded a recovery and rendered the judgment which plaintiff seeks to reverse.
Counsel for both parties state that neither the Supreme nor any of the Appellate Courts of this State have heretofore considered the extent of liability of one, who, in excavating, damages the installations of another lawfully placed there prior to the excavation. Counsel for appellee insists that the only case directly in point is Socony-Vacuum Oil Co., Inc. v. Bailey, 109 N.Y.S.2d 799. This case involved injury to an oil pipeline laid pursuant to an easement from a private landowner under the surface of land used for pasture. The defendant had a contract with the owner to level the surface of the pasture and in doing so operated a bulldozer so that it came into contact with and broke a pipeline. A verdict in favor of the plaintiff was set aside by the trial court and a judgment notwithstanding the verdict was rendered for the defendant. The Supreme Court of New York affirmed the judgment of the trial court and in its opinion said that the facts there were distinguishable from the facts in New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765, 21 L.R.A.2d 470, and held that the plaintiff Socony-Vacuum Oil Company could not recover upon any theory other than that the defendant Bailey was negligent.
In New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765, 21 L.R.A.2d 470, it appeared that the plaintiff, under a franchise from the City of New York, maintained an eight-inch underground iron pipe in the streets of New York for the purpose of supplying steam to its customers. The defendant was employed by the Commercial Cable Company to build an underground vault beneath the sidewalk in the street in front of the cable company's premises and was acting under a lawful permit issued by the city. In the course of its work the defendant drove sheet piling which caused the street to settle in places, injuring the pipe of the plaintiff and necessitating the replacement of a portion thereof. Thereafter the steam company brought its action against the construction company to recover the damages it sustained, and in the trial court the plaintiff obtained a judgment for $725. The appellate division reversed this judgment, holding that there could be no recovery without proof of negligence upon the part of the defendant. In reversing this judgment, the court of appeals stated that the case was one of first impression and could be decided only by resorting to those principles of the common law that apply most directly to the facts and which are best calculated to do justice to the parties. The court stated that the principles which it regarded as controlling are that no one can derogate from his own grant and that everyone must so use his own property as not to injure that of another. The court then went on to say that while both parties to the action were lawfully in the street, the defendant owed the plaintiff a legal duty not to injure its property without making compensation; that the defendant could not disturb an existing structure lawfully in the street without becoming liable for the damages caused thereby. "Even the exercise of due care," continued the court, "did not relieve the defendant from the obligation springing out of the fundamental right of every person to enjoy his own property without interference therewith by the use made of the property of another. . . . Whoever undertakes a work, not on his own land, that will inevitably injure the property of another, subjects himself to liability for the damages inflicted. The defendant, a late comer in the street, and prosecuting a private enterprise, was properly held liable by the referee for the damages caused by its interference with the plant of a public service corporation already in the street with the sanction of law. The defendant took its license subject to the burden of paying for the injury caused by the work done thereunder. Any other rule might result in the utter destruction of public utility lines, without liability."
Frontier Telephone Co. v. Hepp, 66 Misc. 265, 121 N.Y. Supp. 460, was an action brought to recover the cost incurred in replacing cables injured when the defendant, while moving a house along Ellicott Street in Buffalo by the use of a capstan and tackle, drove an iron stake into the ground over an underground conduit of the plaintiff and so deep into the gravel that it penetrated the conduit injuring the cable therein. It appeared that the plaintiff operated a telephone system under a franchise granted by the city which gave it the right to lay its conduits in Ellicott Street. The defendant was a house mover and obtained from the city the necessary permit to move the dwelling. The defendant contended that he was ignorant of the location of plaintiff's conduits and had no knowledge thereof, and if he was liable at all it would be on the ground of negligence. The trial court held, and its holding was approved by the Supreme Court, that the facts presented not a case of negligence but one of unlawful trespass and directed a verdict for the plaintiff. In the course of its opinion, the Supreme Court said: "The defendant had the undoubted right to move the building under the permit from the public authorities but that permit gave the defendant no right or authority to invade or injure the property of the plaintiff in so doing. In moving the house the defendant took the chances of possible injury to the property of others in so doing, and if he did so damage the property of another, he rendered himself liable under the decision in the case of New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765, 21 L.R.A. (N.S.) 470." In answer to defendant's contention that the plaintiff owed the defendant the duty to inform him of the location of its conduits and cables so that the defendant might avoid them, the court said: "The question is thus presented whether it was the duty of the plaintiff to inform the defendant of the location of its conduits or cables, or whether the law imposed the duty of ascertaining their location on the defendant. We have been cited no decisions on the question presented and we believe that its disposition must be largely one of first impressions. We are aware of no precise authority on the subject. We are, however, of the opinion that when one like the defendant uses the public streets of a city for his own private purposes, and goes beneath the street surface by excavation or otherwise, the duty rests upon him to fully inform himself as to what lies below, so that he may avoid injury to the property of the city or others rightfully there. The streets of a modern city are so underlaid with pipes and conduits of various kinds necessary to the comfort and welfare of its citizens that one may be required to almost take judicial notice that in digging he may encounter some such pipe or conduit at any point in a street. We have sewers and water pipes, mains and laterals, steam heating pipes, gas pipes, electric lighting and power lines, telephone and telegraph wires and cables, and all with their necessary branches and connections for service to the abutting owners. When, therefore, one proposes using the public streets for his private purpose and proposes driving iron spuds or stakes below the surface, ordinary prudence and care dictate that he should inform himself of what lies beneath, so as to avoid injury to public property or the property of public service corporations. If he fails to do this, he drives his stakes or makes his excavations at his peril. If, the defendant," continued the court, "in driving his iron stake in moving his house, had driven them into a public sewer, would it have availed him, when called upon to make reparation, to have said he was moving the house by permit from the City Officials, and had no knowledge the sewer was beneath, and therefore the City was negligent in not advising him of its location? We think such a plea could not be
Telephone Company failed to notify the defendant that its conduits and cables were laid between the curb and the sidewalk. As we see it, it was the duty of the defendant to have informed himself of that location, and the plaintiff had the right to assume he had performed that duty for his own protection, and the telephone company cannot be charged with any failure to seek out the defendant and tell him where its cables were laid. Maps and plans showing the exact location of the plaintiff's conduits and cables as laid in Ellicott Street were on file in the City Engineer's Office, and all the information required could have been obtained by consulting those maps. Notwithstanding, the defendant proceeded with his moving operations without any inquiry whatever, when it seems to the court if he had reflected he must have known that somewhere in that street telephone conduits existed."
Frontier Telephone Co. v. Hepp, supra, was cited and quoted from with approval by the Supreme Court of New Jersey in Public Service Ry. Co. v. Mooney, 99 N.J.L. 58, 125 A. 328. In the Mooney case it appeared that the defendant lawfully dug a trench three feet below the surface of Lakeside Avenue in Orange, New Jersey, for the purpose of installing a water pipe connecting an adjacent house to the water main. In doing so, he struck and pierced a concrete conduit containing electric wires belonging to the plaintiff. The electricity melted the lead pipe which the defendant laid next to the conduit, and water from the pipe shortcircuited plaintiff's wires causing considerable damage. It further appeared that there was no plat on file of plaintiff's installations from which defendant could have ascertained the location of plaintiff's conduit. The trial court found insufficient facts, as a matter of law, to constitute actionable negligence and rendered judgment in favor of the defendant. In reversing that judgment, the Supreme Court of New Jersey said: "The defendant is a plumber and had a contract to install the water pipe. He was chargeable with knowledge of the fact that most of our public thoroughfares contain, beneath their surfaces, gas pipes, water pipes, conduits containing telegraph, telephone, trolley, electric light wires, etc. One cannot be permitted to shut his eyes to this condition and blindly go on and dig up a street without taking that degree of care necessary to refrain from interfering with and injuring the property of others. . . . Conduits are property subject to ownership and one wrongfully or negligently causing injury is liable. . . . If a private individual makes any excavation in the street, at least ordinary care is required that no injury shall be done to conduits."
United Elec. Light Co. v. Deliso Const. Co., 315 Mass. 313, a Massachusetts case reported in 52 N.E.2d 553, was an action to recover for damages done by the defendant to plaintiff's conduit lines and manholes located underground in Columbus Avenue in the City of Springfield. Defendant was engaged in constructing a sewer tunnel under a written contract with the city, and, as the work progressed, steel plates were put in place and through holes in these plates, grout, a mixture of cement and water, was discharged through a nozzle under pressure for the purpose of forming a cement crust on the outside top of the tunnel. Some of this grout entered into the manholes and conduits of the plaintiff damaging them and necessitating the installation of new conduits. The declaration consisted of four counts, the first for negligence, the second for a nuisance, the third for the escape of a dangerous instrumentality and the fourth for trespass. The jury found for the defendant on the negligence count and the trial court directed a verdict for the defendant on the other three counts. In its opinion the Supreme Court stated that so far as count one was concerned the jury had settled the question of negligence and no exceptions had been taken thereto. The court affirmed the action of the trial court in directing a verdict on the third count but held that the trial court erred in directing verdicts in favor of the defendants upon the nuisance and trespass counts, being the second and fourth counts of the declaration. The court held that the plaintiff, without any proprietary interest in the land was the owner of the equipment, the conduit lines and manholes; that this equipment did not become a part of the realty but was the personal property of the plaintiff which remained in its custody and possession. As to the trespass count the court said that a trespass requires an affirmative voluntary act upon the part of the wrongdoer and in that respect differs from negligence. The court went on to say that the record disclosed that the plaintiff was lawfully occupying a portion of the underground of the street by virtue of its permits: that the defendant was also lawfully occupying another portion of the underground area by virtue of its contract with the city: that there was no evidence that the construction of the sewer would necessarily result in damage to plaintiff's property: that the plaintiff's system had been installed years before the defendant began the construction of the sewer and that the plaintiff, so far as the defendant was concerned, was entitled to enjoy its property free from any damage caused by the negligence of the defendant and from any interference due to any trespass by the defendant: that there was no evidence that defendant intended to damage plaintiff's property and no evidence that the defendant knew at any time while the grout was being discharged that some of it was seeping into the manholes or conduits of the plaintiff: that the evidence did show that defendant intentionally released a substance which might lodge anywhere that the pressure at which it was discharged would carry it and that the defendant knew of the location of the plaintiff's conduits and that upon the evidence it could be found that the grout was driven into direct physical contact with a part of this underground system and did considerable damage which was the immediate and direct, rather than the remote and consequential, result of forcing the grout into the underground area. The court then concluded: "The defendant had no more right to injure this underground system because it was personal property than it would have had if it had become a part of the realty. The plaintiff and the defendant were each lawfully occupying a portion of the underground area of a public way and the duties owed by one to the other were in the main no different than if they occupied adjoining parcels on the surface of the land."
Cincinnati & Suburban Bell Tel. Co. v. Eadler, 75 Ohio App. 258, decided by the Ohio court of appeals and reported in 61 N.E.2d 795, was an action by the Cincinnati and Suburban Bell Telephone Company to recover for damages to its equipment which it had installed under permission of the municipality beneath a sidewalk on Queen Avenue in the City of Cincinnati. It appeared that the equipment had been installed for the purpose of telephone and fire-alarm communication and was damaged by the defendant while excavating preparatory to erecting a building on an adjoining lot. In reversing the judgment of the trial court, the court of appeals stated that the conduits and cables enclosed thereby were possessed by the plaintiff and were the plaintiff's property rightfully located in the public street, serving a public purpose. The court said, "The law protects that possession and any invasion of it without just cause or excuse to its damage would create a liability in its favor without regard to whether the invasion was the result of an intentional act." The court cited 2 Restatement of Torts, 734, Sec. 281 and continued: "It serves no purpose to debate whether the act of the defendant causing the damage should be considered intentional or negligent. The removal of the lateral support and the subsoil was intentional and the recoverable damage is limited to such as directly ...