American Tel. & Tel. Co. v. Smith

• Decision Date: 17 December 1889
• Citation: 18 A. 910,71 Md. 535
• Parties: AMERICAN TELEPHONE & TELEGRAPH CO. v. SMITH ET AL., (TEN CASES.)
• Court: Maryland Court of Appeals

18 A. 910

71 Md. 535

AMERICAN TELEPHONE & TELEGRAPH CO. v. SMITH ET AL., (TEN CASES.)

Court of Appeals of Maryland

December 17, 1889

Appeal from circuit court, Baltimore county.

STONE J., dissenting.

Argued before ALVEY, C.J., and MILLER, ROBINSON, STONE, BRYAN, and MCSHERRY, JJ.

Robert R. Boarman, for appellant.

David G. McIntosh, for appellees.

MILLER J.

These 10 cases were argued together, and, as they present substantially the same questions, they will be disposed of in one opinion. They are all bills filed by separate land-owners in Baltimore county, seeking to enjoin the American Telephone & Telegraph Company of Baltimore City, a corporation incorporated under the general corporation law of this state, from erecting telegraph poles and constructing a telegraph or telephone line of wires on and over the lands of the several complainants. Eight of the appeals are from orders granting preliminary injunctions upon the several bills. It is well settled that in deciding an appeal from such an order this court can look only to the case made by the bill, though the defendant is required to file an answer before he can appeal, and the answer must appear in the record. Blackburn v. Craufurd, 22 Md. 447. The question, then, is, does each of these eight several bills make out a case for the granting of such an injunction?

The bills all aver and charge, in substance, that the defendant company has recently deposited large and heavy poles upon the lands of the complainants, along the line of the Maryland Central Railroad, and is engaged in setting up said poles, or is about to do so, without their permission or consent; that the erection of these poles, and the stringing of wires thereon, is injurious to their property, and is an appropriation of private property for public use without compensation, or tender thereof, to the complainants; and that they are entitled to have the defendant restrained and enjoined from erecting said poles, and stringing wires thereon, on and over their lands, until it has acquired the right to do so by condemnation of the lands for such use, or otherwise. We have no doubt as to the sufficiency of these averments, or of the jurisdiction of a court of equity to grant an injunction in such cases. A corporation created for the purpose of transmitting messages by telegraph or telephone is, with respect to its right to construct its lines over private property, just as much subject to the provisions of article 3, § 40, of the constitution as is a railroad or any corporation clothed with the power of taking private property for public use. Lewis, Em. Dom. § 172; Mills, Em. Dom.§ 21. This clause of the constitution is too plain to admit of any doubt; and the averment that the defendant is proceeding, or threatens to proceed, to construct its line of poles and wires on and over the complainants' land, without their leave or license, and without paying or tendering to them compensation for the use of their lands for this purpose, is of itself enough. The court could not properly refuse an injunction, in the face of such an averment. The nature of the damage complained of, whether irreparable or not, has nothing to do with the question, when thus presented. Railroad Co. v. Owings, 15 Md. 199. We shall therefore affirm the orders appealed from in these eight cases, without considering the question whether the appeals, or any of them, should be dismissed because of the fact that the answers of the defendant are not under its corporate seal.

In the other two cases, those of Smith and McIntosh, the appeals are from pro forma orders refusing to dissolve the injunctions upon bills, answers, and proof. In these cases the defendant corporation, in its answers, avers that it is proceeding to construct its line of poles and wires along and on the right of way of the Maryland Central Railway Company under a contract with that company, made on the 29th of April, 1889, for the use and benefit of the railway company in operating and running its cars; that the railway company has the right to place telegraph poles and wires, and telephone wires and poles, over and upon its right of way, for the use and operation of its railroad, and as many as may be necessary for operating its road, and for the safety of the public who travel over the same; for the purpose of facilitating the business of the road, and increasing its passenger travel and freight tonnage; and that the railway company could do this themselves, or employ some other company to do it for them, and the complainants have therefore no right to interfere. These answers disclose what is obviously the real controversy in all these cases. On the one side, the land-owners, from whom the railroad company obtained the right of way for the construction of its railroad, insist that the construction of this telegraph and telephone line will impose an additional servitude or burden on their lands, for which they are entitled to compensation, and that the line cannot be constructed until the corporation or corporations undertaking its construction have first complied with the requirement of the constitution in regard to taking private property for public use. On the other hand, the telegraph and telephone company contend that they are constructing this line upon the right of way of the railroad company, under a contract with that company for its use, and to facilitate the operation of its road, and to increase its business; and in this contention they are aided by the railroad company. The right to construct this line has also been placed in argument upon other grounds, which will be noticed hereafter. Before considering the facts, we must ascertain the law applicable to such cases; and this is not altogether free from difficulty. Not many instances have occurred in which land-owners have asserted such claims, and the cases in which the precise question before us has been raised are comparatively few. In the most recent text-book on Eminent Domain, it is said: "A line of telegraph on a railroad right of way is an additional burden, unless constructed for the use of the railroad company, in the operation of its road and dispatch of its business." Lewis, Em. Dom. § 141. In Mills on Eminent Domain, § 59, the author approvingly quotes part of the opinion of the court in Telegraph Co. v. Rich, 19 Kan. 517. That case, also referred to by Lewis, has been strongly pressed upon our attention, and therefore requires a careful examination. It was a suit by a land-owner against the Western Union Telegraph Company to recover damages for cutting down trees on his land. The trees were on, or close to, the right of way of the Atchison, Topeka & Santa Fe Railroad, and were cut down to make room for the telegraph poles, and to prevent interference with the telegraph wires. The defendant sought to prove that the telegraph line was built jointly by it and the railroad company, under an arrangement for its joint use by the two companies, and introduced a witness to prove that the line of telegraph was built jointly by the two companies, for the use of the railroad company in the moving of its trains and the transaction of its business; that it was part of, and necessary to, its business, and was built on and over the right of way of the railroad company. The lower court rejected this testimony, and this ruling was held to be erroneous. This was the sole question decided, and in deciding it the court said: "A telegraph line, if not indispensable to a railroad, tends so much to facilitate its business, and to the speedy and safe running of its trains, that the railroad company has a right to build it, to use its right of way therefor, and to remove all obstructious thereon to its fullest and most uninterrupted and beneficial use. Although it may have but an easement in the land, and that easement limited to its use for railroad purposes, yet a telegraph is so convenient, if not indispensable, that it may cut down every tree and bush on the right of way, if necessary for the most constant and efficient use of a telegraph line built by it over and upon such right of way, just as it may dig away a hill or fill up a ravine for the sake of a water-tank or a station-house. * * * By so doing, it gives the adjacent land-owner no claim for damages. Such use is contemplated in the original condemnation, and the damages resulting therefrom are part of the damages included in the assessment therefor. In short, the railroad company may use its right of way not merely for its track, but for any other building or erection which reasonably tends to facilitate its business of transporting freight and passengers, and by such use in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damages to the original land-owner. So that, if the railroad company had built this line by itself, and independent of the defendant, and in so doing had only cut down trees upon its right of way, it is clear that the plaintiff would have no cause of action therefor. Does the fact that it took a partner in the construction and use of the telegraph expose it, or such partner, to any liability to the land-owner for the full value of trees cut down upon its right of way? We think not. If the railroad company could build by itself without liability, it did not assume liability by building with another. Whatever it could do, and would have done, for its own use and benefit, and was so done, was, so far as the land-owner is concerned, damnum absque injuria, no matter who bore the expense; or, perhaps more correctly, it was damages already paid for. We do not question that every additional burden cast upon the land outside of the purpose and scope of the original easement, no matter in...