Am. Tel. & Tel. Co. v. Smith

Citation71 Md. 535,18 A. 910
PartiesAMERICAN TELEPHONE & TELEGRAPH CO. v. SMITH et al., (ten cases.)
Decision Date17 December 1889
CourtCourt of Appeals of Maryland
18 A. 910
71 Md. 535

AMERICAN TELEPHONE & TELEGRAPH CO.
v.
SMITH et at., (ten cases.)

Court of Appeals of Maryland.

Dec. 17, 1889.


18 A. 911

Appeal from circuit court, Baltimore county

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 oases, 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

18 A. 912

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...

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