386 S.W.2d 663 (Mo.App. 1965), 8373, Southwestern Bell Tel. Co. v. Newingham

Docket Nº8373.
Citation386 S.W.2d 663
Party NameSOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. C. R. NEWINGHAM and Ann Newingham, his Wife, and E. H. Mallett and Mildred Mallett, husband and wife, Robert A. Smith, Trustee, and John Hancock Mutual Life Insurance Company, Defendants- Respondents.
Case DateJanuary 20, 1965
CourtCourt of Appeals of Missouri

Page 663

386 S.W.2d 663 (Mo.App. 1965)

SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Appellant,

v.

C. R. NEWINGHAM and Ann Newingham, his Wife, and E. H.

Mallett and Mildred Mallett, husband and wife,

Robert A. Smith, Trustee, and John

Hancock Mutual Life Insurance

Company,

Defendants-

Respondents.

No. 8373.

Springfield Court of Appeals, Missouri.

January 20, 1965

Page 664

John Mohler, Leo Eickhoff, and Donald King, St. Louis, Harry C. Blanton and Bernard C. Rice, Blanton, Blanton & Rice, Sikeston, for plaintiff-appellant.

Harry H. Bock, Bock & Jones, New Madrid, for defendants-respondents.

Page 665

RUARK, Presiding Justice.

This case involves the question of whether or not a telephone company may condemn for the purpose of laying underground cables. The Southwestern Bell Telephone Company (hereinafter referred to as the Company) filed petition against Newingham and others (hereinafter called Owners) to appropriate an easement one rod in width across Owners' land in order to construct, operate and maintain an underground communications system, consisting of underground cables, wires, conduits, and other necessary appurtenances below the surface, with right to clear and maintain the strip, both surface and sub-surface, of trees, roots, and other obstructions. The petition did not specify or restrict the depth (or shallowness) of the contemplated cables below the surface. Owners filed motion to dismiss based on grounds that the Company had no authority under the laws of the State of Missouri to condemn easements across private property for underground cables or wires. The motion was sustained and the Company appealed.

Company contends it has the power of eminent domain for underground installations under the provisions of Section 523.010 RSMo 1959, V.A.M.S. (the 'general' condemnation statute) and buttresses its contention by the fact that Sections 392.130 and 392.200 (of the chapter regulating telephone and telegraph companies) require the company to furnish sufficient and adequate facilities to meet the communication needs of the public. Owners contend that Section 392.100 of the chapter relating the telephone and telegraph companies limits the right of appropriation therein granted to poles, piers, abutments, wires and other necessary fixtures over or above the ground; that this is demonstrated by the provisions of Section 392.080, which expressly give telephone and telegraph companies the right to put such installations along, across, or under public roads, streets, and waters; and that the appropriation of the sub-surface for wires and cables places a greater burden on private property than is contemplated by Section 392.100.

Subject to constitutional limitations, the discretion to exercise the sovereign power of eminent domain is in the Legislature and those to whom it delegates such function by statute. 1 Since it is not disputed that a telephone company is engaged in a public service and the property taken by it for telephone line communications is for a public use (American Tel. & Tel. Co. of Missouri v. St. Louis & I. M. & S. Ry. Co., 202 Mo. 656, 101 S.W. 576, 583), our sole question is did the Legislature delegate to the telephone company the right to appropriate the sub-surface for such use?

The Respondents contend, and we think correctly, that the exercise of eminent domain is in derogation of the right of the citizen; that a statute delegating that power must be strictly construed, 2 and the person or body claiming the right to exercise such delegated power must be able to point to the statute which either expressly or by necessary implication confers that right. 3 But the rule of 'strict

Page 666

construction' has no definite or precise meaning. It has only relative application. It is not the opposite of liberal construction, and it does not require such a strained or narrow interpretation of the language as to defeat the object. 4 The primary purpose of all statutory construction is to determine the intent of the Legislature; 5 and all such rules are but vassals to the liege sovereign...

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12 practice notes
  • 972 S.W.2d 416 (Mo.App. W.D. 1998), WD 53765, City of Smithville v. St. Luke's Northland Hosp. Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...statute which either expressly or by necessary implication confers that right. Id. (quoting Southwestern Bell Telephone Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App.1965)) (footnotes omitted). As a fourth class city, the legislature has granted Smithville general statutory authority to con......
  • 452 S.W.2d 280 (Mo.App. 1970), 33520, Duckworth v. United States Fidelity & Guaranty Co.
    • United States
    • Missouri Court of Appeals of Missouri
    • February 24, 1970
    ...and harmonized if possible in order that meaning might be given to all provisions. Southwestern Bell Telephone Co. v. Newingham, Mo.App., 386 S.W.2d 663, 668(13). This applies even though the statutes are found in different chapters and were enacted at different times. State ex rel. Smithco......
  • Coming to terms with strict and liberal construction.
    • United States
    • Albany Law Review Vol. 64 Nbr. 1, September 2000
    • September 22, 2000
    ...such strained or narrow interpretation of language as to defeat object of statute. Southwestern Bell Tel. Co. v. Newingham, Mo. App., 386 S.W.2d 663, 665. Rule of "strict construction" means that criminal statute will not be enlarged by implication or intendment beyond fair meanin......
  • 950 S.W.2d 569 (Mo.App. S.D. 1997), 21022, Osage Water Co. v. Miller County Water Authority, Inc.
    • United States
    • Missouri Court of Appeals of Missouri
    • July 7, 1997
    ...found in the United States and Missouri constitutions and other Missouri statutes. See Southwestern Bell Tel. Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App.1965); Mo. Condemnation Practice, § 1.1 (MoBar 2d ed.1988); see, e.g., § 523.010.4. In addition to constitutional and statutory limitat......
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11 cases
  • 972 S.W.2d 416 (Mo.App. W.D. 1998), WD 53765, City of Smithville v. St. Luke's Northland Hosp. Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...statute which either expressly or by necessary implication confers that right. Id. (quoting Southwestern Bell Telephone Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App.1965)) (footnotes omitted). As a fourth class city, the legislature has granted Smithville general statutory authority to con......
  • 452 S.W.2d 280 (Mo.App. 1970), 33520, Duckworth v. United States Fidelity & Guaranty Co.
    • United States
    • Missouri Court of Appeals of Missouri
    • February 24, 1970
    ...and harmonized if possible in order that meaning might be given to all provisions. Southwestern Bell Telephone Co. v. Newingham, Mo.App., 386 S.W.2d 663, 668(13). This applies even though the statutes are found in different chapters and were enacted at different times. State ex rel. Smithco......
  • 950 S.W.2d 569 (Mo.App. S.D. 1997), 21022, Osage Water Co. v. Miller County Water Authority, Inc.
    • United States
    • Missouri Court of Appeals of Missouri
    • July 7, 1997
    ...found in the United States and Missouri constitutions and other Missouri statutes. See Southwestern Bell Tel. Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App.1965); Mo. Condemnation Practice, § 1.1 (MoBar 2d ed.1988); see, e.g., § 523.010.4. In addition to constitutional and statutory limitat......
  • 436 S.W.3d 718 (Mo.App. E.D. 2014), ED101151, State ex rel. Watson v. Sherry
    • United States
    • Missouri Court of Appeals of Missouri
    • July 8, 2014
    ...v. St. Luke's Northland Hosp. Corp., 972 S.W.2d 416, 420 (Mo.App. W.D. 1998) (quoting Southwestern Bell Telephone Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App. 1965)). It is clear that Page 725 the intent of the requirement to limit the time for acquiring property under the TIF Act, Sectio......
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1 books & journal articles
  • Coming to terms with strict and liberal construction.
    • United States
    • Albany Law Review Vol. 64 Nbr. 1, September 2000
    • September 22, 2000
    ...such strained or narrow interpretation of language as to defeat object of statute. Southwestern Bell Tel. Co. v. Newingham, Mo. App., 386 S.W.2d 663, 665. Rule of "strict construction" means that criminal statute will not be enlarged by implication or intendment beyond fair meanin......