EARL GEORGE CAMMERS et al., Appellees, v. MARION CABLEVISION, a Division of Cable Information Systems, Inc., Appellant, 64 Ill. 2d 97

MR. JUSTICE SCHAEFER delivered the opinion of the court: The plaintiffs, Earl George Gammers and Lillian Gammers, who are the owners of a 30-acre tract of land in Williamson County, brought an action in the circuit court for a mandatory injunction requiring the defendant, Marion Cablevision, to remove a 3/4-inch underground television cable and an aboveground television cable box which the plaintiffs alleged had been installed on their land without their consent. The plaintiffs also prayed that they be awarded actual and punitive damages.

The circuit court found that the defendant’s television cable line and cable box encroached on the plaintiffs’ property, granted the mandatory injunction, and continued the cause for a determination of damages. On appeal by the defendant, the Appellate Court for the Fifth District, although agreeing with the trial court’s determination that the defendant had committed a trespass, concluded that the remedy of a mandatory injunction was not appropriate.

The appellate court accordingly reversed that portion of the judgment which granted the injunction, and remanded the cause for the purpose of ascertaining damages. (26 Ill. App. 3d 176.) We granted the plaintiffs’ petition for leave to appeal. The south boundary of the plaintiffs’ property is the south line of a quarter section. A public highway, which apparently exists by prescription, runs along that south boundary. The highway does not run in a true east-west direction; its direction is generally southwest to northeast. The road is surfaced and is drained by ditches.

The defendant admits that it laid its cable along a line to the north of the north edge of the surfaced portion of this road. That north edge intersects the plaintiffs’ south property line at a point approximately 440 feet east of the southwest corner of the tract. To the west of this point of intersection the north edge of the road lies from one to five feet south of the plaintiffs’ property line.

To the east of the point of intersection, the north edge of the surfaced portion of the road extends over the property line onto the plaintiffs’ land for distances increasing progressively from one foot to slightly over 11 feet at the southeast corner of the tract. A plat of survey also shows a line of power poles running parallel to and slightly north of the south property line. The record is silent as to the ownership of these poles or the circumstances under which they were erected. The cable, which was installed at a depth of from two to three feet, runs the full length of the plaintiffs’ property.

So far as that portion of the cable — about 900 feet in length — lying to the east of the point where the north edge of the road intersects the property line is concerned, all of the cable must necessarily lie on the plaintiffs’ property. Moreover, the defendant admits that in connection with the cable installation, it also placed a pedestal-shaped television box aboveground at a point located IIV2 feet north of the plaintiffs’ property line.

The surveyor who prepared a plat of survey for the plaintiffs did not run his survey until 1974, after this action had been filed and long after the installation of the cable, which took place in 1970. He testified that he plotted a line purporting to show the location of the cable from a line of markers on the surface of the ground which his survey crew had observed being placed by men working out of a truck bearing the sign “Cablevision.” He testified further that he believed that the markers had been inserted in order to identify the route of the cable.

An objection to the competency of this testimony was overruled by the trial court, and the defendant introduced no evidence of its own to rebut the surveyor’s testimony.

The defendant’s answer to the plaintiffs’ interrogatories stated that before the cable was laid measurements were made to determine that it would be laid within the highway easement, and the plaintiffs’ surveyor testified that the south line of the plaintiffs’ land “lies within the highway right-of-way, if you include the right-of-way to mean the surfacing, the side ditches and the back slopes.” A drainage ditch essential to make a highway easement effective, if maintained and used by the public, is of course included within a prescriptive highway easement. (City of Highland Park v.

Driscoll (1962), 24 Ill.2d 281.) We think, therefore, that the evidence was sufficient to show that the cable box, and the indicated portion of the underground cable, are located on that point of the plaintiffs’ land which is subject to the highway easement.

Prior to laying its cable, the defendant obtained a letter from the county superintendent of highways of Williamson County giving the defendant a general authorization to “install, maintain, repair, replace, renew and remove cable for television service along, across and upon County and Unit Road District Highways of the County of Williamson.” The defendant maintains that the issuance of this permit constituted a complete defense to the plaintiffs’ action. We do not agree. The letter was apparently issued pursuant to

section 9 — 113 of the Illinois Highway Code of 1959 (Ill. Rev. Stat. 1973, ch. 121, par. 9-113). Paragraphs one and two of that

section provide as follows: “No ditches, drains, track, rails, poles, wires, pipe line or other equipment of any public utility company, municipal corporation or other public or private corporation, association or person shall be located, placed or constructed upon or along any highway, or any township or district road, other than a highway or road within a municipality without first obtaining the written consent of the appropriate highway authority as hereinafter provided for in this Section.

Upon receipt of a petition therefor, consent to so use a highway may be granted subject to such terms and conditions not inconsistent with this Code as the highway authority deems for the best interest of the public. The petitioner shall pay to the owners of property abutting upon the affected highways established as though by common law plat all damages the owners may sustain by reason of such use of the highway, such damages to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain.” While

section 9 — 113 requires a corporation installing equipment in a right-of-way to obtain the written consent of the superintendent of highways, that consent does not relieve such a corporation from liability for whatever damages are suffered by abutting owners. The appellate court was therefore correct in remanding the cause for a determination of damages. We believe that the appellate court was also correct in holding that a sufficient showing was not made to warrant the issuance of a mandatory injunction.

It is true that as between adjacent parcels of private property, where no public easement is involved, a mandatory injunction may properly issue against a landowner to compel removal of a building which encroaches on his neighbor’s land in such a manner as to deprive the latter of its use, even though the encroachment may be slight. Nitterauer v. Pulley (1948), 401 Ill. 494; Ariola v. Nigro (1959), 16 Ill.2d 46. The present case presents a significantly different aspect, however.

With the exception of the cable box, the installation is two to three feet underground, and, as the defendant points out, the plaintiffs have failed to show any present or even prospective use of their unimproved tract which would be damaged by the cable installation. Nor is it contended that the installation interferes in any way with the use of the highway for travel. As for the cable box, a photograph introduced into evidence by the plaintiffs shows that the box is situated immediately adjacent to one of the line of power poles which already stretches along the entire south end of the plaintiff’s property.

We are of the opinion, moreover, that a mandatory injunction is ordinarily inappropriate where the alleged encroachment lies within a highway right-of-way. The construction of telegraph or telephone poles and wires along a highway has been held to constitute an additional servitude, entitling one who owns property abutting on the highway and who also owns the land beneath it to maintain an action of ejectment or to enjoin the construction. (Postal Telegraph-Cable Co. v. Eaton (1897), 170 Ill. 513; DeKalb County Telephone Co. v. Dutton (1907), 228 Ill. 178; cf. Moore v.

Gar Creek Drainage District (1915), 266 Ill. 399.) But as the defendant points out, underground installations which are for the benefit of the public at large and which do not impair the use of the highway have been regarded as falling within the highway easement. (Barrows v. City of Sycamore (1894), 150 Ill. 588, 593.) The defendant is not a public utility (Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill.2d 205), however, and its cable television operations benefit the defendant and its customers, rather than the general public.

The reasoning of the Barrows case is thus not directly applicable. The cases mentioned above were decided without reference to

section 9 — 113, and we think that that section, in providing that abutting owners are to be compensated for damages discloses a legislative policy against the issuance of a mandatory injunction in a case such as this. The

section proceeds on the theory that persons in the position of the present plaintiffs have already lost or have given up the use of' the surface of the right-of-way and will ordinarily not be irreparably injured by the types of uses enumerated in the section. We recognize that the damages to the plaintiffs remain to be ascertained upon the remand, and nothing we say here is intended to foreclose the presentation of evidence on that issue. We hold only that no showing of irreparable injury warranting the issuance of a mandatory injunction has been made. (Cf. Beloit Foundry Co. v.

Ryan (1963), 28 Ill.2d 379.) In our view the plaintiffs’ future rights will be adequately protected by an adjudication that the defendant has encroached on the plaintiffs’ land and an award of any damage the plaintiffs may have sustained. The judgment of the appellate court is accordingly affirmed. Judgment affirmed.