Sullivan v. San Francisco Gas Etc. Co.

SHAW, J.

This action was begun in the superior court of the city and county of San Francisco, for the purpose, as stated in the prayer of the complaint, of enjoining the defendants and each of them “from making or filing any criminal complaint, or issuing or serving any warrant of arrest, or arresting plaintiffs, or eitner of them, by reason of the taking down, cutting, or removal by any of said plaintiffs of the electric wires of the defendant, the San Francisco Gas and Electric Company.” The court, upon application therefor, and after a hearing, made an order for an injunction during the pend-ency of the action as prayed for. From this order the defendants have appealed.

According to the allegations of the complaint and the proofs at.the hearing, the plaintiffs are severally pursuing the occupation of house-movers in the city of San Francisco, and have and procure from the city as often as may be necessary, permits to move over and upon the public streets of the city the houses which they may be employed to move, and that in so doing the wires of the defendant, the San Francisco Gas and Electric Company, which overhang the streets, interfere with the moving of the houses, so that it is necessary to cut and temporarily remove the wires while the houses

[370]

are being moved along the particular street over which the wires extend. The plaintiffs, or some of them, have cut these wires in some instances, and have been arrested therefor at the instigation of the electric company and charged with violating the provisions of section 593 of the Penal Code. It is alleged that the further cutting of such wires will frequently be necessary in the business in which the plaintiffs are engaged; that they cannot carry on the business without doing so; that the electric company threaten similar criminal prosecutions against plaintiffs for each instance of interference with the said wires; and that the plaintiffs in good faith el aim and believe that they have the lawful right to cut and remove such wires for said purposes, and have cut them and propose to continue so to do under and in pursuance of said belief and claim. Section 593 is as follows: “Every person who unlawfully and maliciously takes down, removes, injures, interferes with, or obstructs any line erected or maintained by proper authority for the purpose of transmitting electricity for light, heat, or power, or any part thereof, or any insulator or cross-arm, appurtenance or apparatus connected therewith, or severs or in any way interferes with any wire, cable, or current thereof, is punishable by imprisonment in the state prison not exceeding five years, or by fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding one year.” The San Francisco Gas and Electric Company, in the course of its business, maintains wires strung on poles over, across, and along the streets of the city, for the purpose of supplying the city and its inhabitants with electric light, and under the provisions of the state constitution (art. XI, sec. 19) it has the right to use the streets for that purpose, subject to such regulations as may be made by the municipal authorities. It may be conceded, for the purposes of this case, that the plaintiffs also have the right to use the streets for the purpose of moving houses thereon from place to place in the city, subject to such regulations as the city authorities may impose. It is not contended that section 593 is invalid or unconstitutional. Indeed, this could not well be claimed, for it forbids only the unlawful and malicious removal or interferences with the wires, and even if such wires constituted unlawful obstructions in the street, they would still be private property, and the unlawful and