Western Union Tel. Co. v. Pennsylvania R. Co.

• Decision Date: 19 May 1903
• Docket Number: 14.,31
• Citation: 123 F. 33
• Parties: WESTERN UNION TELEGRAPH CO. v. PENNSYLVANIA R. Co. PENNSYLVANIA R. CO. et al. v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Third Circuit

123 F. 33

WESTERN UNION TELEGRAPH CO. v. PENNSYLVANIA R. Co.

PENNSYLVANIA R. CO. et al. v. WESTERN UNION TELEGRAPH CO.

Nos. 31, 14.

United States Court of Appeals, Third Circuit.

May 19, 1903

Rush Taggart, John F. Dillon, and Richard Vliet Lindabury, for telegraph co.

John G Johnson, for Railroad Co.

Before ACHESON and DALLAS, Circuit Judges, and BRADFORD, District Judge.

DALLAS Circuit Judge.

These two cases are parts of one and the same controversy. They were argued together, and may be disposed of in a single opinion. One of them is before this court upon a writ of error to an order of the Circuit Court for the Western District of Pennsylvania, made January 20, 1903, dismissing a petition by which the Western Union Telegraph Company sought to acquire by condemnation the use of the right of way of the Pennsylvania Railroad Company and its branches for the telegraph company's lines of telegraph. The other is an appeal from a decree of the Circuit Court for the district of New Jersey, made upon January 21, 1903, awarding an injunction restraining the Pennsylvania Railroad Company and other from interfering with the telegraph lines of the Western Union Telegraph Company upon the right of way of the railroad company.

The situation of the parties, and their relation to each other at the time these proceedings were instituted, may be briefly indicated. On June 20, 1864, the Pennsylvania Railroad Company contracted with the Atlantic & Ohio Telegraph Company for the use by the latter of the right of way of the railroad company for a telegraph line, and the line which was accordingly constructed was thereafter operated by the Western Union Telegraph Company, as lessee of the Atlantic &amp Ohio Telegraph Company. On September 10, 1881, however, the Western Union Telegraph Company itself entered into a contract with the Pennsylvania Railroad Company, and under this last-mentioned contract the lines of that telegraph company over and along the right of way of the railroad company have since been maintained and operated. This contract, which by its terms was to continue in force for 20 years from its date, contained the following provisions:

'Sixteenth. If no new agreement be made by the parties hereto, the telegraph company shall at the termination of this contract, or at any time thereafter, upon receiving written notice from the railroad company, remove within six months from the receipt of said notice, all of its poles and wires and leave the property of the railroad company in good condition and free from the encumbrance thereof to the satisfaction of the general manager, or other proper officer of the railroad company, and if not so removed the railroad company may remove them at the expense of the telegraph company: provided, however, that the payment agreed to be made by the telegraph company to the railroad company in the sixth clause hereof, and by the railroad company in the eighth clause, shall not apply to the said six months, the companies respectively hereby expressly agreeing to waive the same. * * * Any easement or right of way heretofore acquired by the telegraph company upon any of the roads embraced in this agreement, either directly by contract or by assignment of contracts or agreements made by other companies with the railroad company, or with any of the companies whose roads or property are embraced in the schedule hereto attached, is hereby relinquished and abandoned, and the rights and easements of the telegraph company upon the right of way of said railroad company shall be such only as are granted by this agreement, and shall cease with its termination.'

On May 15, 1902, the railroad company gave a written notice to the telegraph company, as follows:

'Pennsylvania Railroad Company

'Philadelphia, 15th May, 1902.

'Mr. Robert C. Clowry, Prest. Western Union Tel. Co., New York City. My Dear Sir:-- In pursuance of action taken by the board of directors of this company on 14th May, 1902, I send the enclosed notice. Kindly acknowledge receipt, and oblige,

Very truly yours

'(Signed) Lewis Neilson, Secretary.

'To the Western Union Telegraph Company: You are hereby notified to remove within six (6) months from the 1st day of June, 1902, all of your poles, wires and property from the right of way and property of this company and of the other companies named in a certain agreement between this company and you dated the twentieth day of September, Anno Domini 1881 (a copy whereof is hereto attached), or named in any addition, or additions, supplement or supplements, written or verbal, to said contract, and to leave the property of this company and of the other companies referred to in good condition and free from the encumbrance of your said poles, wires, and other property, to the satisfaction of the general manager of this company. And you are also notified that if not so removed and such property left in said good condition by you, this company will, at your expense, cause your said poles, wires and other property occupying the right of way or property of this and the other companies referred to, to be removed and said property left in good condition free from the encumbrances of the said wires, poles, and other property, to the satisfaction of the general manager of this company.

'In witness whereof, the said the Pennsylvania Railroad Company has caused its corporate seal to be hereunto affixed, duly attested by the signature of its proper officers, this fourteenth day of May, Anno Domini 1902.

'The Pennsylvania Railroad Company. 'By (Signed) A. J. Cassatt, President.

'Attest: (Signed) Lewis Neilson, Secretary. (Seal.)'

On June 20, 1902, the telegraph company sent to the railroad company $6,250, 'payment due June 20, 1902, as per contract,' and this sum the railroad company's comptroller accepted. It does not appear however, that he either intended or was authorized to waive the notice of May 15, 1902, which, it will be observed, had been ordered by the board of directors of the railroad company, and was given under its corporate seal, attested by the signature of its president and secretary. Moreover, this remittance did not relate to a time extending beyond that within which the notice had required that the removal should be effected, but covered a period during the running of the notice, when the telegraph company was, under the contract, entitled to continue its occupation without payment of rent. In short, a sum of money which was not demanded nor demandable was voluntarily paid, not in extension of the term, but upon the erroneous assumption that it was due 'as per contract'; and although a minor officer or agent of the railroad company inadvertently accepted this payment, the notice which had been previously given was not, in our opinion in any way affected thereby. On June 25, 1902, the Pennsylvania Railroad Company entered into a contract with the Postal Telegraph-Cable Company, granting to that company certain pole facilities upon the railroad company's right of way for 15 years, and the continued presence of the Western Union Company's lines thereon conflicts with the provisions and purposes of that contract.

The decree in the district of New Jersey was not made upon the merits, but upon the ground that it would result in irreparable injury to no one, and might soon be reviewed upon appeal, whereas an order refusing an injunction would have entailed much loss to the...