Hodges v. Western Union Telegraph Co.

Decision Date27 October 1903
Citation45 S.E. 572,133 N.C. 225
PartiesHODGES et ux. v. WESTERN UNION TEL. CO.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Harnett County; Bryan, Judge.

Action by G. R. Hodges and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Where a deed to a railroad company granted a right of way and easement for the purpose of "surveying, building constructing, and repairing the road," the railroad acquired the right to erect and use, so far as reasonably necessary for the operation of the road, a telegraph line but did not authorize the erection and maintenance of a line of telegraph poles and wires for general commercial purposes.

On January 15, 1883, the plaintiff execut- to the Wilmington & Weldon Railway Company a deed reciting that said company contemplated building a branch line of its railroad, etc and that "for and in consideration of the benefits to be derived from the building of said branch road, and in further consideration of one dollar," the plaintiff grants to the said company, "its successors and assigns, all the following described rights of entry, rights of way, and other rights, privileges, and easements; that is to say, a free and perpetual right of entry, right of way, and easement at any and all times for the purpose of surveying, building constructing, operating, altering, improving, and repairing the said branch line of railroad, its depots, station houses warehouses, bridges, and all necessary erections, and for all other purposes necessary and convenient for the use, operation, and business of the said branch road in, through, and over a strip of land one hundred and thirty feet wide--that is to say, measuring 65 feet on each side of, and at right angles to the center of track or roadbed of the said branch line," etc. Pursuant to this grant, the company surveyed, located, and built the branch line of road over the plaintiff's land, and operated the same until its assignment of its property and rights to the Atlantic Coast Line, and said assignee has at all times since maintained and operated said railroad. During the year 1888 the said company constructed a telegraph line with one wire and small poles over the line near the roadbed ditch, and a year or two afterwards the defendant placed another wire on the said poles. On June 1, 1880, the Wilmington & Weldon Railway Company entered into a contract with the defendant company, whereby it was agreed that "the railroad company, so far as it legally may, and to the extent of its corporate power, hereby grants and agrees to insure to the telegraph company the right to keep, maintain, and operate its existing line of telegraph, and to construct, maintain, and operate such additional lines and wires as it may elect on and along the line and bridges of the railroad company's right of way, and upon any branches and extensions thereof," etc. The telegraph company agrees to pay "for the occupancy of said right of way" $14 per mile. There are certain other stipulations, not material to this controversy. "The telegraph company agrees to maintain its line along said railroad in good order and repair, and to set apart one wire for the business of the railroad company exclusively, and for the local commercial offices maintained by it." The seventh clause of the agreement is in the following words: "Neither the terms of this agreement, nor any stipulation herein contained, shall have the effect of creating a covenant of quiet enjoyment, either express or implied, on the part of the railroad company and in favor of the telegraph company, or against the owner of the fee simple of the land over which the railroad company has the right of way." The provisions of the contract are declared to extend "to all roads, branches, and extensions now or hereafter owned or controlled by the railroad company," and to continue for 20 years. On March 23, 1887, the Wilmington & Weldon Railway Company entered into another contract with the defendant in regard to the erection and maintaining of telegraph poles and wires along said branch road. This contract continued for one year. On March 23, 1888, the said railway company entered into "a supplemental agreement" with the defendant company. By this agreement ""the railroad company, for and in consideration of three thousand seven hundred and eighteen dollars, lawful money of the United States, to it in hand paid by the telegraph company, the receipt whereof is hereby acknowledged, has bargained, sold, assigned, transferred, and set over unto said telegraph company, its successors and assigns, all of said line of poles and wires between Wilson and Fayetteville, N. C., aforesaid, being altogether about 71 and 1/2 miles of poles and 71 and 1/2 miles of wire, more or less, together with all loops, insulators, brackets, fixtures and appurtenances thereunto belonging, and including all instruments, batteries, tools, machinery, appliances, and office appurtenances and all telegraph material now used and on hand for use in connection with said line, together with full right and license to maintain, operate, repair, and renew said line upon and along the right of way of the railroad company. To have and to hold the same unto the telegraph company, its successors and assigns, to and for their use and behoof forever." The railroad company released the telegraph company from payment of the rental provided for in the contract of June 1, 1880. The provisions of the agreement between the parties dated June 1, 1880, except as herein amended, are declared to apply and extend to said railroad and telegraph line between Wilson and Fayetteville, and to all other rights and privileges owned and controlled by the said railroad company. Among the provisions set out in the contract of June, 1880, the telegraph company agrees that it will maintain its line along said railroad in good order and repair, and to set apart one wire, and upon six months' notice to set apart a second wire, for the use of the railroad company. Certain other provisions in regard to the terms upon which the business was to be conducted are fully set out. The plaintiffs allege that they are the owners of the tract of land in Harnett county, and that it is the same land over which they have granted to the railroad company a right of way as herein set out. They further allege that the defendant has caused to be placed in and upon said land, and extending across the same for the length of nearly a mile or more, a row of posts, and has sunk anchor wires from some of the posts into the ground, and has strung wires over and across said premises, and unlawfully and wrongfully continues to keep up and maintain the said posts and wires, going upon and over said land to attend to the same, and have already taken and appropriated the plaintiff's said land to its own use. The said posts and wires are an obstruction to the plaintiffs in the cultivation of their farm and the use of the same, interfering with the plaintiffs in the use of their farm implements, and constituting a continual nuisance to these plaintiffs; and that the plaintiffs have not at any time given the defendant permission or conveyance to the easement or right or title to the said land, or the right to go over the same, nor any person for them. The defendant company alleges that on March 23, 1888, the said Wilmington & Weldon Railway Company conveyed to the said telegraph company all of said lines and poles between Wilson and Fayetteville; the said telegraph company using and operating said lines of poles and wires partly for the use of the railroad company, in the operation of its trains and in the necessary maintenance and conduct of its line of railroad; and the defendant alleges that the same is not only expedient and necessary, but the right to construct said line was conveyed to said railroad company, and by it to the telegraph company. The defendant company admits that it continues to keep up and maintain said poles and wires, but denies that it does so wrongfully and unlawfully.

The plaintiffs testified that in November, 1899, the defendant built an entirely new line, with new poles, wires, and fixtures, cross-arms, etc. These poles were about 18 feet high, cross-arms about 10 feet long, with 8 or 10 new wires and this line was located about 20 feet from the original line in the plaintiffs' farm. The line includes a space about 15 feet wide through the plaintiffs' land. The original line constructed on the ditches or near them did not interfere with the cultivation of the land. The defendant is doing an interstate business, and runs these lines from New York to Dunn, and to cities south as far as Jacksonville. The defendant has an office in Dunn, not used for railroad purposes, but which is used entirely for commercial purposes. There is one wire, which is used by the railroad company in its business in a separate office from the defendant's commercial office. The other wires on this line are through wires, and not connected with either office at Dunn. The plaintiff rested, and the defendant introduced the contracts hereinbefore set out. The defendant introduced J. A. Spiers, who testified that he was agent of the Atlantic Coast Line Railway Company; that there was but one line of poles, and they are used by the railroad company, and it is the only line. The defendant asked the witness this question: "Is the use of a telegraph line necessary for the safe and proper operation of a railroad?" Plaintiff objected. Objection sustained, and the defendant excepted. The issues submitted by the court were: ""(1) What permanent damages have the plaintiffs sustained by reason of the defendant's appropriation of their land as described in the complaint? (...

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