Pacific Postal-Telegraph-Cable Co. v. Oregon & C. R. Co.

• Decision Date: 02 September 1908
• Docket Number: 3,204.
• Citation: 163 F. 967
• Parties: PACIFIC POSTAL TELEGRAPH-CABLE CO. v. OREGON & C. R. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F. 967

PACIFIC POSTAL TELEGRAPH-CABLE CO. v. OREGON & C. R. CO. et al.

No. 3,204.

United States Circuit Court, D. Oregon.

September 2, 1908

Frederick v. Holman, for plaintiff.

Dolph Mallory, Simon & Gearin, Ben C. Dey, and Wm. D. Fenton, for defendants.

WOLVERTON District Judge.

The defendant Oregon & California Railroad Company is the owner of an easement or right of way, 100 feet in width, more or less, upon which its line of railroad is constructed running from Portland, in Multnomah county, Or., in a southerly direction to the south boundary of the state, a distance of 366.61 miles; such road being now in operation. Plaintiff is a corporation having its principal place of business in the city of New York, state of New York, and is engaged in the construction, maintenance, and operation of electric telegraph lines through various parts of the United States. It is alleged that, within the scope of its purposes, it is necessary for the plaintiff to construct, maintain, and operate a line of electric telegraph from Portland, in Multnomah county, Or., to and beyond the southern boundary of the state of Oregon, and that it is most convenient and practicable to construct, maintain, and operate such line upon the easement and right of way of said defendant railroad company. The proposed manner of construction is that the poles shall be erected 35 feet from the center line of the defendant's main track, wherever the width and conditions of the right of way will permit thereof, and not nearer than 15 feet therefrom and not nearer than 15 feet from the center line between the rails of all side tracks, switches, turn-outs, etc., where the width, conditions, and location of said side tracks etc., will allow of the same going so far; it being averred that the erection of plaintiff's said electric telegraph line as proposed "will in no way or manner interfere with the use or occupation by the defendants of the said right of way, nor will it interfere with the operation of cars or trains along the main line, side tracks, switches, turn-outs, turn-tables, spurs, etc., of the said railroad."

The complaint is tested by a demurrer, and the principal points of controversy presented are, first, whether power and authority is conferred, under the Oregon statute, upon one public service corporation having the right of eminent domain to condemn a right of way or easement over and along the priorly acquired right of way or easement of another such corporation; and, if so, second, whether an easement or right of way, being once procured, by condemnation action, with another easement or right of way, for the use and purposes of another and different public service corporation.

The authority for condemning land for use as a right of way is given to railroad corporations and to telegraph and telephone companies by virtue of sections 5074, 5075, B. & C. Comp., as amended by Act Feb. 25, 1907 (Sess. Laws 1907, p. 289), and by Act Feb. 17, 1903 (Sess. Laws 1903, p. 111), being an amendment of section 4750, B. & C. Comp. Section 5074, as amended, provides that a corporation organized for the construction of any railway shall have a right to enter upon any land between the termini thereof for the purpose of examining, locating, or surveying the line of such road, doing no unnecessary damage thereby. Section 5075 provides that any corporation mentioned in section 5074 as amended may appropriate so much of said land as may be necessary for the line of such road, not to exceed 200 feet in width. The amendatory act of 1903 provides that any corporation organized for the purpose of building, maintaining, and operating a telephone or telegraph line for the transmission of messages for hire shall have the right to enter upon lands within the state of Oregon for the purpose of examining, locating, and surveying the line thereof, doing no unnecessary damage thereby, and may appropriate and condemn such lands, not exceeding 25 feet in width, as may be necessary or convenient for such purpose. By another section, namely, section 4748, B. & C. Comp., the right and privilege is extended to any person, persons, or corporation to construct, maintain, and operate telegraph lines along the public roads, highways, and streets of the states, or across rivers or over any lands belonging to the state, free of charge, and over lands of private individuals as subsequently provided. Then follows section 4750, alluded to above, being amended as indicated. It is stoutly contended, the statute having used the word "land" or "lands," that without more it does not authorize an easement in land only to be taken and appropriated for railroad or telegraph purposes; or, in other words, that, an easement or right of way having once been acquired for one purpose, the statute by intendment does not grant the right or privilege of condemning it for any other purpose. Condemnatory proceedings by a railroad or telegraph company for the purpose of appropriating land to its use result ordinarily in an appropriation of an easement only; for, when the use lapses, the easement reverts to the original holder of the land. It has been held by the Oregon Supreme Court that:

"A title that may be freed from public use cannot be acquired by a private corporation by eminent domain. So land can only be taken for the particular use for which it is sought to be appropriated; * * * that is, in this case, for the purpose of a railway, an easement was all that was called for, and all that the respondent could acquire." O. R. & N. Co. v. Oregon Real Estate Co., 10 Or. 444.

So that, in legal contemplation, the railway or telegraph company by an appropriation under the statute does not obtain a title to the land as land, but an easement only in the land, and whenever the use ceases the easement reverts. But, however this may be, it seems that the term "land" is comprehensive enough to include an easement in land. The term "land" being of broader significance, must necessarily include the lesser estate.

Mr. Lewis, in his work on Eminent Domain, § 285, says:

"The term 'land' in statutes conferring power to condemn is to be taken in its legal sense, and includes both the soil and buildings and other structures on it, and any and all interest therein. An easement merely may be taken under authority to take land."

In the case of State ex rel. H. H. & D. R. Company v. Railroad Commissioners, 56 Conn. 308, 15 A. 756, it is said that:

"The word 'lands' is comprehensive, and may include everything that may be classed as real estate. A highway or street is a public easement in land. It attaches to it, and cannot exist separated from it, so that it is, in fact, a part of the realty. When the statute authorizes the taking of land, unless there is something indicating a contrary intent, it authorizes the taking of all the incidents and appurtenances of land. * * * When the statute uses the word 'land' in granting to a railway a power to exercise the right of eminent domain, it will be presumed to use it in its comprehensive sense as including all interests attached to it or growing out of it."

So in a case from Pennsylvania -- Philadelphia, etc., Railroad Company v. Williams, 54 Pa. 103 -- the court says:

"It is argued, also, that the charter authorizes the taking of land only which is corporeal, and not a right of way which is incorporeal. This refinement is too subtle for our comprehension. It is difficult to understand how a right to enter upon land and locate and construct a railroad thereupon can be arrested by the existence of an incorporeal hereditament issuing or served out of it. One would suppose that in taking the land the way itself is taken. 'Omne majus continet in se minus' seems to forbid any other conclusion. If the land itself which supports the way can be taken, I can see no reason why its incident, the right of way over it, is not equally affected by the same taking for the use of the public."

When, therefore, the statute gives authority for taking land, it carries with it by necessary implication the authority to take any less interest or estate in the land in the same way and to like effect as the land itself may be taken.

Counsel cite in support of their contention the case of Matter of Boston & Albany Railroad Company, 53 N.Y. 574 Inhabitants of Springfield v. Connecticut River Railroad Company, 4 Cush. (Mass.) 63, State, Mayor...