The opinion
On Denial of Petition for Rehearing.
Respondents in their petition for rehearing again assert their acquisition of a property right or interest in the public thoroughfares by virtue of the placing thereon of their facilities, again urging Idaho Const., Art. 11, § 13; I.C. §§ 62-701 and 62-705 and various authorities.
While the right so to place utility facilities and use the public thoroughfares has the attributes of property, Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U.S. 84 , 33 S.Ct. 997 , 57 L.Ed. 1400 , such is not, and cannot ripen into, a permanent vested property right in fee, as we held in our original opinion and continue so to hold. This is true simply because, in summary:
First, Idaho Const., Art. 11, § 13, recognizes only the right of telephone and telegraph companies to construct and maintain their lines within this state and connect the same with other lines, leaving it to the legislature to provide the “reasonable regulations” therefor; and the legislature, by I.C. § 62-701 relating to telephone and telegraph companies, and I.C. § 62-705 to electric power companies, enacted the “rea *530 sonable regulations”; thereby the- legislature granted to those utilities the right to the use of the public thoroughfares for placement of their facilities thereon, — but nevertheless defeasible, — in such manner and at such points or places as not to incommode the public use of such thoroughfares, thereby recognizing that the sovereign and its political, subdivisions hold the public thoroughfares in trust for use by the general public.
Second, inasmuch as the sovereign in the exercise of its police power, where convenience and necessity of the paramount public use so require, may cause removal of the facilities at the expense of the utility companies, since their right to the use of the public thoroughfares, as to the manner and points or places of location thereon of their facilities, is subordinate and defeasible, there is no taking of property of the utilities without due process in violation of either the Constitution of the United States or of the State of Idaho, U.S. Const. Amend. 14; Idaho Const, art. 1 § 13.
The petition for rehearing is denied.
BELLWOOD, CRAMER and MARTIN, District Judges., concur.
KNUDSON, J., dissents.