Acme Cement Plaster Co. v. American Cement Plaster Co.

• Decision Date: 09 May 1914
• Docket Number: (No. 609.)
• Citation: 167 S.W. 183
• Parties: ACME CEMENT PLASTER CO. v. AMERICAN CEMENT PLASTER CO. et al.
• Court: Texas Court of Appeals

167 S.W. 183

ACME CEMENT PLASTER CO. v. AMERICAN CEMENT PLASTER CO. et al.

(No. 609.)

Court of Civil Appeals of Texas. Amarillo.

May 9, 1914.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by the Acme Cement Plaster Company against the American Cement Plaster Company and others. From an order denying a writ of injunction, plaintiff appeals. Reversed and remanded.

Decker & Clarke, of Quanah, for appellant. Huff, Martin & Bullington, of Wichita Falls, and S. D. Bishop, of Lawrence, for appellees.

HUFF, C. J.

This is an appeal from the order of the district judge refusing to grant the prayer for writ of injunction, because the petition presented to him did not disclose such an equity as would justify him in granting the writ prayed for. The appellant, the Acme Cement Plaster Company, complained of the American Cement Plaster Company and C. H. Newby, alleging substantially that the appellant was a corporation duly chartered under the laws of Illinois, and doing business in Texas, and that the appellee American Cement Plaster Company is a corporation chartered under the laws of the state of Kansas, for the purpose, and with powers, to mine, manufacture, and sell gypsum and its products, and doing business in Texas, and was not chartered for the purpose, nor had it the power or authority, to construct and maintain magnetic telegraph lines, and that C. H. Newby was the agent and manager of the company in Hardeman county, Texas. It is alleged that on the 1st day of January, 1910, and at all times since then, appellant was and is the owner of the fee in and to all those parts of sections 208 and 209, Block H. W. & N. W. Ry. Co. Surveys in Hardeman county, Tex., lying north of the Ft. Worth & Denver City Railway Company's right of way, and that on all of said days and dates it was lawfully seised and possessed of said land, holding the same in fee simple, with the exception: (a) That there is a public road meandering across said lands in a westerly direction, from the town of Quanah, known as the Quanah & Childress road, same being about 60 feet in width; (b) a public road extending in a northerly direction from intersection with the last-named road along the west side of section 208, occupying a strip of about 20 feet off of said section; that Hardeman county owns an easement over said land used as a public road for road purposes, but that the fee thereto is now and has been on all the dates aforesaid in the plaintiff; (c) that the Acme Tap Railroad Company is the owner of an easement over and across said section 208 in a northerly direction from a connection with the Ft. Worth & Denver City Railway Company, the said right of way being 100 feet in width, but that the fee of said right of way is vested in the appellant; that on or about January 1, 1911, the appellees, without the consent of appellant, erected their telephone line over and across plaintiff's said land owned and held in fee, and over and along the right of way of the Acme Tap Railway Company and since said time has been using said line for the purpose of transmitting messages from Quanah to the plaster mill of appellees, and that about January 1, 1914, appellant notified appellees to remove said telephone line from appellant's land; that about February 10, 1914, appellees, over the objection and protest of appellant, began digging holes in and along and across and over appellant's land above described, and said that it is their intention to place telephone poles in said holes and wires on said poles, and use said telephone line for their use and benefit; that at this time the holes have been dug over and across sections 208 and 209, about 54 feet north of the north boundary line of the Ft. Worth & Denver City Railway Company, and state that it is their intention to place the remainder of the telephones on and along the public roads on the west side of section 208; that some of the holes now excavated for the telephone line are on and in the Quanah & Childress public road aforesaid, and some are on the other lands of plaintiff; that defendants will continue to operate and construct said telephone lines, unless restrained, and the plaintiff has no adequate remedy at law. Appellant's prayer was for a writ of injunction restraining appellees' agent and employés from further using and maintaining the telephone lines now in operation above described, and from erecting and maintaining the telephone lines above set out as under construction, and from further going upon and over and across plaintiff's land, other than along the public roads, and from further digging holes and pits in the public roads across said land or upon other parts of said lands, and from further operating a telephone over and across the public roads on said lands, and from further operating a telephone over the remainder of said lands above described, etc.

Appellant's first assignment is substantially that the court erred in refusing the writ of injunction prayed for, because the petition showed that appellees were naked trespassers upon appellant's land, doing an unlawful act over the protest and objection of appellant in constructing a telephone line over the lands held and possessed by appellant in fee simple. The propositions thereunder presented are: (1) That an injunction will lie to protect the owner's possession of real property from a forcible trespass. (2) That it appears from the allegation that appellees are not corporations organized and chartered for the purpose of constructing and maintaining a magnetic telegraph line, and had no right as such to construct over the public roads of which appellant has the fee. (3) That the restraining order should have been granted, restraining the operation over the railway right of way, the fee to which was owned by appellant, as well as to the abutting lands.

The allegations show that the appellees are not such corporations as are given the right of eminent domain or the right to construct and maintain telephone lines over the public highways. Under articles 1231 and 1235, R. S., this court held, in Roaring Springs Townsite Co. v. Paducah Telephone Co., 164 S. W. 50, "The statute gives the privilege only to corporations created for the purpose of constructing and maintaining telephone lines," and, if not such a corporation, it should be treated as a trespasser in attempting to construct its line, and the owner of land would be entitled to an injunction. The allegations in the petition show that the line, as constructed and used, and the proposed extension is for the private use of appellees. Land cannot be taken for private purposes in any case, and can be taken for public use only upon compensation being made therefor. Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758; Borden v. Trespalacious, Rice, etc., 98 Tex. 494, 86 S. W. 11-14, 107 Am. St. Rep. 640; Kyle v. Ry. Co., 3 Willson, Civ. Cas. Ct. App. § 436, which case quotes Cooley on Const. Lim. (4th Ed.) 660. "The lands of an individual cannot be taken for public use without compensation; much less can they be wrested from one man and given to another, neither directly nor indirectly by such clogs, restrictions, and burthens upon his right of the recovery as to in a great measure destroy the value of the property itself." Hearn v. Camp, 18 Tex. 549.

Whether the statute giving to telephone companies the right to construct on or over the public roads can do so without compensating the owner of the fee is a much-mooted question by the various courts, and whether it is an additional burden on the land has occasioned diverse holdings. For suggestions by this court on this point, see Roaring Springs v. Paducah, etc., supra; also, for conflict between holdings, see McCann v. Johnson Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171, 2 Ann. Cas. 156; Bronson v. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A. 426, 2 Ann. Cas. 639.

Is the erection of a telephone line on the right of way of the railway company and on the public roads a taking of the land from the owner of...