Mobile & O.R. Co. v. Postal Tel. Cable Co.

• Decision Date: 05 November 1898
• Parties: MOBILE & O. R. CO. v. POSTAL TEL. CABLE CO.
• Court: Alabama Supreme Court

24 So. 408

120 Ala. 21

MOBILE & O. R. CO. v. POSTAL TEL. CABLE CO.

Supreme Court of Alabama

November 5, 1898

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Proceeding by the Postal Telegraph Cable Company against the Mobile &amp Ohio Railroad Company to condemn right of way. From a judgment for the petitioner, the respondent appealed. Affirmed.

This was a proceeding by the appellee, the Postal Telegraph Cable Company, to condemn an easement in its favor for the purpose of constructing and operating a line of telegraph over the right of way of the Mobile & Ohio Railroad Company, and was commenced by a petition filed by the Postal Telegraph Cable Company, addressed to the judge of the probate court of Mobile county. This petition averred that the petitioner was a corporation duly organized under the laws of the state of New York, for the purpose of owning, constructing, using and maintaining telegraph lines, and the transmission by wires of messages, etc., and that it was its desire and intention to construct, maintain and operate, for the purposes for which it was organized, a connecting line of telegraph wire in this state, along and on the right of way of the Mobile & Ohio Railroad Company, from the city of Mobile, Ala., to a station on the said railroad known as State Line; that the petitioner had complied with the statutes of the state in reference to foreign corporations doing business in this state; that the Mobile & Ohio Railroad Company was duly incorporated in this state, and was operating a single line of railroad from the city of Mobile, Ala., to East St. Louis in the state of Illinois; that the right of way secured to it in the state of Alabama was 100 feet in width; that it was the desire of the petitioner to construct, maintain and operate a line of telegraph on, along, and upon the right of way of the said Mobile & Ohio Railroad Company, from the city of Mobile to said station of State Line, and connect therewith a line of telegraph at the time owned and operated by the petitioner. It was then averred that the railroad company holds and owns its right of way through the state as aforesaid, subject to such restrictions, terms and conditions as are imposed by the laws of said state, and that under and by virtue of said laws the petitioner was authorized to construct, maintain and operate its line of telegraph along any of the railroads or other public highways of the state. It was then averred that the petitioner does not seek to acquire a fee to any land included in the right of way of said railroad company, or a right to use it for any other purpose than to erect telegraph poles and suspend wires upon them, and to maintain and repair the same, and to use the structure for telegraph purposes only; that it intends to erect and maintain only one line of poles for such purposes; that the compensation to be paid for the property sought to be appropriated for the purposes mentioned could not be agreed upon by the railroad company and the petitioner, although an earnest effort had been made to effect such agreement.

It was then averred in the petition as follows: "The line of telegraph to be constructed by your petitioner will be of the best material, and upon the most improved plan known or in use in this country, with poles twenty-six feet long, and one foot in diameter at the base, and will be erected by being firmly fixed in the ground at a depth of not less than five feet, in such manner as to hold the same firmly in position and upon such will be attached suitable arms and insulators and along which will be strung, attached and suspended, at or near the upper end, metallic wires of suitable material and of sufficient number to enable your petitioner to properly transmit all intelligence, messages and news, and said poles will be set about 175 feet from each other, and in localities were the lines cross the track of said railroad, or where it is necessary to do so, to prevent any possible interference with any work or use of said railroad, its poles will be of such height above the ground as to permit the wires to be suspended so far above any structure or work of said railroad company, or any cars that may be run thereon, as to prevent any interference therewith. The cross arms to be about six feet long, extending the same distance each side of the poles where attached. The said poles will be so erected and said telegraph lines so constructed and maintained as not to obstruct or hinder the usual travel on said railroad, or interfere with the business or use of said railroad company and so as not to violate any of the provisions of the statutes of this state. Said poles will be erected upon the right of way aforesaid, and in the manner aforesaid, at a distance of not less than thirty feet from the outer edge of said railroad track, and in the event said railroad company shall at any time desire to change the locality of its track or to construct new tracks or side tracks, where the same do not now exist, your petitioner hereby consents to remove such poles, to such other point or points on the said railroad right of way adjacent thereto which shall be designated by said railroad company, upon reasonable notice to and at the expense of petitioner. And said petitioner hereby agrees to place its said poles at such points along and upon said right of way as may be agreed upon by the said defendant and petitioner, and if at any time said railroad company desires to use the earth where any of said poles may be set, or the ground thereon for any purpose, then in such event to remove such pole or poles to such other point or points on said railroad right of way as may be agreed upon by petitioner and the defendant railroad company. That your petitioner will so construct and maintain said line of telegraph as not to obstruct orhinderthe usual travel or traffic on said railroad, nor, will it in any manner, impede or obstruct the free use of or come in contact with any other line of telegraph wire, erected on said right of way, of said railroad company, for the purpose of telegraphy. That at and on the lands above described, which is necessary for the construction, maintenance and occupancy of the line of telegraph of your petitioner, except on the piling trestlework and bridges of said railroad company, there is no improvement or superstructure, except the filling and embankment of said railway, and that consists of a mere transformation of the surface of the earth into shape and condition to fit it for a railroad bed, and is not at the point where your petitioner intends to set poles and suspend wires. That said lines, when so constructed, will in no way damage or injure the property or any of it of the said railroad company."

After averring that the petitioner was desirous and willing to pay to said railroad company just compensation for the property which it seeks to take, or such damage as would accrue, in consequence of the appropriation sought by the petitioner the petition then prays that an order may be made granting the right to the petitioner to take and appropriate such part of the railroad's right of way as may be necessary to construct its line, and that the amount of damages, if any, and compensation that the petitioner should pay for the use of such part of the right of way be adjudged. To this petition the respondent filed the following demurrers: "(1) Said petition fails to allege any facts showing or tending to show, that the proposed condemnation will inure to the benefit of the public. (2) Said petition fails to aver any facts showing, or tending to show, that the lands or right of way proposed to be condemned are necessary for the proper construction of petitioner's line of wire and poles. (3) Said petition fails to aver any facts showing the necessity of condemning the right of way of defendant or the impracticability of securing or condemning other property for its right of way along its proposed route. (4) Said petition fails to aver any facts showing, or tending to show, that the petitioner has not obtained, or cannot obtain, other property for its right of way between the points petitioner desires to reach other than the right of way owned and occupied by defendant. (5) Said petition fails to state what part of the defendant's right of way it seeks to condemn, whether all or a portion of the same outside of the part covered by defendant's tracks. (6) Said petition fails to state that the line of petitioner proposed to be erected will not take up the lands now occupied by defendant and its assigns for the erection of telegraph poles and lines. (7) Said petition fails to state upon which side of defendant's track it proposes to erect its said line. (8) Said petition fails to aver in any specific manner what property the petitioner proposes to condemn, or in what part of defendant's line it proposes to locate the property so condemned. (9) Said petition fails to aver specifically the amount of land proposed to be taken, or where the same is located, and avers no facts from which the court or jury could determine the amount of land taken, the location of same, or the fair and reasonable compensation for the same." This demurrer was overruled. On the same day that the demurrer was overruled, the court rendered a judgment granting the application of the petitioner and ordering that issue be made up between the parties before a jury to ascertain and assess the amount of damages and compensation which the defendant is entitled to receive, by reason of the condemnation sought. This judgment is copied at length in the opinion. On the following day, the cause was tried before a jury regularly impaneled on issue made up under the direction of the court. On the trial of this issue, the...