ASSOCIATED TELEPHONE CO., LTD. v. Greenman

DORAN, J.

Two appeals are involved; one from an order and judgment of nonsuit in favor of respondent Greenman ; the other from a judgment on a verdict in favor of respondent Y. M. Pilgrim. The action herein seeks damages arising out of the operation of a bulldozer by Greenman which injured telephone conduit and cables buried in the earth and located on an easement in Uplifters Ranch Subdivision.

[195]

The case was tried before a jury upon a first amended complaint which in general terms alleges negligence causing damage in the amount of $4,250.12. On January 12, 1951, five days before the date of trial, plaintiff-appellant had noticed for hearing a motion seeking to add a new and additional cause of action on the theory of trespass. The trial court refused to permit the amendment; a nonsuit was granted as to respondent Greenman, and the jury returned a verdict in favor of respondent Pilgrim.

Respondent Greenman’s brief states: “For many years prior to February 11, 1948, (the alleged date of damage), appellant’s conduits and cables were maintained in a generally easterly and westerly direction across said Lot 16. . . . Before the completion of the subdivision the owners . . . executed and delivered a grant of an easement to the appellant over an area approximately 5 feet on either side of the center of the conduits for the length thereof. This grant of easement, recorded December 8, 1947, provided that appellant might construct, maintain and operate a telephone line, with . . . conduits, cables and appurtenances ... in, over, under, along and across said easement.”

In respondent Greenman’s brief, attention is called to the fact that the above mentioned easement “specified neither the lateral nor vertical location of the area”; that the conduit had been laid 21 years before and was approaching the usual life of such conduits; that a bridle path crossed the easement wearing down the surface; that ground contours are known to change by reason of rain and other erosion; that the telephone company had apparently given no attention to the conduit during this long period; and that while Greenman “knew that poles and wires above the ground had been installed in the area of the telephone cable easement ... he did not know that any underground cables had been installed.”