American Telephone & Telegraph Company of Missouri v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 28 March 1907
• Citation: 101 S.W. 576,202 Mo. 656
• Parties: AMERICAN TELEPHONE & TELEGRAPH COMPANY OF MISSOURI v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

101 S.W. 576

202 Mo. 656

AMERICAN TELEPHONE & TELEGRAPH COMPANY OF MISSOURI v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 28, 1907

Appeal from Butler Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed and remanded.

Franklin Ferriss, Joseph H. Zumbalen, Martin L. Clardy, Eleneious Smith and Louis F. Dinning for appellant.

(1) (a) Property devoted to a public use cannot be condemned for another public use that will materially interfere with the prior public use. Pennsylvania R. Co.'s Appeal, 93 Pa St. 150; Pittsburg J. R. Co.'s Appeal, 122 Pa. St. 511; Railroad v. Railroad, 124 Mass. 368; N.W. Tel Ex. Co. v. Railroad, 76 Minn. 334; R. S. 1899, sec 1272; Railroad v. Depot Co., 125 Mo. 82. (b) Whether the proposed use will materially interfere with the prior use is a judicial question, upon which the defendant is entitled to a hearing and the judgment of the court. Railroad v. Railroad, 94 Mo. 535; Railroad v. Telegraph Co., 30 Col. 133; In re Railroad, 34 Minn. 227; Railroad v. Telegraph Co., 58 C. C. A. 198; Telegraph Co. v. Railroad, 30 Ind.App. 654. (c) If, in such case, the defendant, by timely answer or objection, questions the right to make the second appropriation on the ground that it will materially interfere with the prior use, the judgment of condemnation will be void, unless it finds said issue in the petitioner's favor. Railroad v. Cable Co., 68 Ohio St. 306; Ellis v. Railroad, 51 Mo. 200. (2) The property sought to be appropriated, or easement proposed to be acquired, must be definitely located and described in the petition and judgment. A description which leaves the location of the easement to the subsequent determination of the petitioner, is obviously insufficient. R. S. 1899, sec. 1264; Railroad v. Fowler, 113 Mo. 458; Railroad v. Telegraph Co., 173 Ill. 508. (3) In proceedings to condemn an easement for the erection and maintenance of a telegraph line along the right of way of a railroad, the measure of compensation is the amount which the right of way of the railroad company is diminished in value by the proposed easement of the telegraph company. Railroad v. Telegraph Co., 68 Ohio St. 306; Railroad v. Telegraph Co., 173 Ill. 508; Railroad v. Telegraph Co., 120 Ga. 268; Railroad v. Telegraph Co. (Miss.), 45 L. R. A. 223. The obligations imposed by law upon a railroad company to care for and maintain its right of way free from underbrush, etc., and the cost and expense to the railroad company of putting in condition its right of way, are elements to be considered in estimating the damages. Railroad v. Telegraph Co., 68 Ohio St. 306; Telegraph Co. v. Railroad, 49 La. Ann. 1270; Telegraph Co. v. Railroad, 104 F. 623.

Phillips & Phillips and Walter J. Terry for respondent.

(1) (a) Property devoted to a public use can be condemned for another public use, even though the second taking interferes with or destroys the prior use, if express legislative authority be granted therefor, subject to this exception: "That it cannot be taken to be used for the same purpose in the same manner." Lewis, Em. Dom. (2 Ed.), 276. (b) The above proposition is immaterial in this case since the pleadings, evidence and facts show that there can be no material interference. Lewis, Eminent Domain, sec. 268b at p. 647, note 25; Railroad v. S.W. T. & T. Co., 60 L. R. A. 151; Telegraph Co. v. Railroad, 30 Ind.App. 654; In re Railroad, 34 Minn. 230; Railroad v. Postal Telegraph Co., 173 Ill. 519; Railroad v. Tel. Co., 121 F. 285, 58 C. C. A. 207; Railroad v. Tel. Co., 30 Colo. 144. (c) There is express authority in this State for condemning the property in question under the facts and pleadings. R. S. 1899, secs. 1252, 1272; Railroad v. S.W. T. & T. Co., 60 L. R. A. 150; Railroad v. Telegraph Co., 68 Ohio St. 317. (d) General authority to condemn would authorize condemnation proceedings under the facts and pleadings in this case. Lewis, Em. Dom., sec. 269, p. 647, note 25; Railroad v. Tel. Co., 58 C. C. A. 207; Railroad v. Telegraph Co., 30 Ind.App. 654; Tel. Co. v. Railroad, 23 Utah 474, 7 Am. Elec. Cases, 421; Railroad v. Railroad, 111 Cal. 231, 43 P. 605; Railroad v. Tel. Co., 30 Colo. 144. (e) If the question as to whether the proposed use will materially interfere with the prior use is a judicial question upon which the defendant is entitled to a hearing and judgment of the court, it has had such hearing and the judgment fully protects it. Railroad v. Railroad, 94 Mo. 535; Railroad v. S.W. T. & T. Co., 58 C. C. A. 207; Railroad v. Postal Telegraph Co., 173 Ill. 519; Railroad v. Postal Telegraph Co., 24 So. 411; Railroad v. Postal Tel. Co., 120 Ga. 277; Railroad v. Telegraph Co., 30 Colo. 133. (f) When express authority is granted for the second condemnation, the question as to whether this will materially interfere with the prior use is a defense, and the burden of showing this is on defendant. Railroad v. S.W. T. & T. Co., 58 C. C. A. 208; Railroad v. Telegraph Co., 30 Colo. 142; Railroad v. Telegraph Co., 24 So. 411; Railroad v. Railroad, 94 Mo. 542. (g) The court, under the pleadings in this case, could take judicial cognizance of the fact that the proposed line would not interfere with the railroad company. Railroad v. Tel. Co., 24 So. 411; Railroad v. Telegraph Co., 60 L. R. A. 151; Railroad v. Telegraph Co., 173 Ill. 519; In re Railroad, 34 Minn. 230; Railroad v. Callaghan, 50 Ill.App. 676; Globe Printing Co. v. Stahl, 23 Mo.App. 451; Davis v. Hanley, 12 Ark. 645; Railroad v. Dey, 82 Ia. 312, 48 N.W. 98. (2) The property sought to be appropriated, or easement proposed to be acquired, was definitely located and described in the petition and judgment. The description did not leave the location of the easement to be determined by the petitioner. R. S. 1899, sec. 1264; Railroad v. Fowler, 133 Mo. 458; Railroad v. Telegraph Co., 173 Ill. 516; Railroad v. Telegraph Co., 58 C. C. A. 203; Telegraph Co. v. Railroad, 23 Utah 479; Railroad v. Telegraph Co., 24 So. 408; Tel. Co. v. Railroad, 111 F. 842. (3) The damages under the pleadings and evidence in this case are nominal. (a) The burden of showing the amount of damages is on the defendant. Lewis, Em. Dom. (2 Ed.), sec. 426; Railroad v. Rhea, 44 Ark. 258. And having shown no substantial damages, the judgment for nominal damages will be sustained. Lewis, Em. Dom. (2 Ed.), sec. 489, at p. 1088; Railroad v. Railroad, 105 Ill. 121; Railroad v. Tel. Co., 24 So. 412. (b) Nominal damages alone are recoverable in such condemnations. Railroad v. Telegraph Co., 101 Tenn. 62, 41 L. R. A. 403; Telegraph Co. v. Railroad, 23 Utah 474, 7 Am. Elec. Cas. and note at p. 426. (c) The jury awarded substantial damages, notwithstanding the court's instructions, and appellant cannot complain. Railroad v. Tel. Co., 76 Miss. 731; Tel. Co. v. Railroad, 104 F. 623, affirmed in 111 F. 842; Railroad v. Tel. Co., 173 Ill. 508; Railroad v. Tel. Co., 56 S.W. 201; Railroad v. Tel. Co., 120 Ga. 268; Railroad v. Tel. Co., 24 So. 408. (d) Under the rule of damages adopted by the courts most favorable to appellant, it has received the full measure thereof. Railroad v. Tel. Co., 49 La. Ann. 58, as modified in same vol., at p. 1270, and as further limited in Railroad v. Railroad, 51 La. Ann. 1605, 40 So. 627. (4) The advantages to the condemning party and the cost of clearing and ditching right of way cannot be considered in estimating damages. Railroad v. Telegraph Co., 120 Ga. 278; Railroad v. S.W. Tel. & Tel. Co., 56 S.W. 201; Railroad v. Postal Tel. Co., 25 So. 307, 76 Miss. 748.

OPINION

LAMM, J.

Plaintiff is a domestic telephone and telegraph corporation and seeks to condemn an easement for the erection and maintenance of poles and lines in the right of way of defendant railway company from the city of Poplar Bluff in Butler county to the southern boundary of Missouri, a distance of twenty-one miles. The proceeding progressed through the statutory stages of the filing of plaintiff's petition in the office of the clerk of the circuit court of Butler county, the entry of an order in vacation by the Honorable James L. Fort, judge of said court, appointing the day and place where said petition would be heard and ordering service of summons upon defendant to be and appear at said time and place, the appearance of defendant, the filing by it of what is called in the record "its answer and objections," the order appointing commissioners notwithstanding, the making and filing of a report by said commissioners awarding defendant damages of $ 10 per lineal mile, notice to defendant thereof and the filing within ten days thereafter by defendant of its exceptions to said report, a jury trial, a verdict awarding defendant $ 315 damages, followed by a judgment, motions for a new trial and in arrest by defendant and defendant's appeal here.

Attending to the record essential to understanding the questions presented here, the petition is as follows:

"The petition of the American Telephone and Telegraph Company of Missouri, a corporation, respectfully shows: that it is a corporation created and existing under and by virtue of the laws of the State of Missouri for the purpose of doing a general telephone and telegraph business, and is by its charter authorized to construct and operate a system of telephone and telegraph lines for the use of the general public.

"That the defendant, St. Louis, Iron Mountain and Southern Railway Company, is a corporation duly organized under and by virtue of the laws of the State of Missouri, for the purpose of doing a general railroad business and owns and operates a railroad from the city of Texarkana, in the county of Miller and State of Arkansas, to the city of St. Louis, in the State of Missouri; its main line running through the ...