American Tel. & Tel. Co. v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 28 March 1907
• Citation: 202 Mo. 656,101 S.W. 576
• Parties: AMERICAN TELEPHONE & TELEGRAPH CO. OF MISSOURI v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

101 S.W. 576

202 Mo. 656

AMERICAN TELEPHONE & TELEGRAPH CO. OF MISSOURI v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. EMINENT DOMAIN—DELEGATION OF POWER — TELEPHONE AND TELEGRAPH COMPANIES — PROPERTY PREVIOUSLY DEVOTED TO PUBLIC USE.

Under Rev. St. 1899, c. 12, art. 6, § 1252 [Ann. St. 1906, p. 1028], authorizing corporations created to construct telephone and telegraph lines to enter on any lands, whether owned by a private person or by any corporation, and to appropriate so much of such lands as may be necessary to erect poles, etc., for a telephone or telegraph, and to condemn lands in the manner provided by law, and chapter 12, art. 7, § 1272 [Ann. St. 1906, p. 1044], providing that in case the lands sought to be appropriated are held by a corporation the right to appropriate shall be limited to such use as will not materially interfere with the uses to which the corporation holding the same is authorized to put such lines, a telephone and telegraph company has authority to appropriate and condemn an easement to erect and maintain its poles and wires on the right of way of a railroad.

2. SAME—EXERCISE OF DELEGATED POWER— DISCRETION IN EXERCISE OF POWER.

Under Rev. St. 1899, c. 12, art. 6, § 1252 [Ann. St. 1906, p. 1028], and chapter 12, art. 7, § 1272 [Ann. St. 1906, p. 1044], authorizing a telephone and telegraph company to condemn an easement to erect and maintain its poles and wires, the discretion which such a company may exercise in determining the route of its lines cannot be interfered with in the absence of a showing of bad faith, malicious motive, or that the taking of a particular tract sought to be condemned would entail a great loss which might readily be avoided.

3. SAME—DETERMINATION OF QUESTIONS AS TO VALIDITY OF EXERCISING POWER.

In proceedings by a telephone and telegraph company to condemn an easement on the right of way of a railroad company to erect and maintain its poles and wires, the question whether the proposed easement of the telephone and telegraph company would destroy or materially interfere with the public use to which the easement of the railroad was put is a judicial question, and as such to be determined by the court and not the jury.

4. SAME.

Where, in proceedings by a telephone and telegraph company to condemn an easement in the right of way of a railroad company to erect and maintain its poles and wires, a petition was filed, and defendant appeared and objected, contending, among other things, that the proposed easement would materially interfere with the public use to which the easement of the railroad company was put, and, upon an inspection of the petition and the "reasons and answers" of the defendant, the "reasons and answers" were by the court overruled and disregarded, the overruling thereof involved a determination by the court of the judicial question whether the proposed easement would materially interfere with the public use to which the easement of the railroad company was put, as against the objection that such issue was raised and not determined by the trial court.

5. SAME.

A proposed telephone and telegraph line along one side of a railroad company's right of way, corresponding to the line of poles and wires of another company on the other side of the right of way, agreed to place its poles at an average of not less than 35 to the mile, 35 feet from the center line between the rails of the main track, and continuing at that distance where the width and conditions of the right of way would permit, and not nearer than 15 feet in any event, and not nearer than 15 feet from the center line between the rails of all side tracks, etc., where the width of the right of way would permit. The poles and wires strung thereon were to be of the best material, the poles to be held securely in position and at all curves so guyed and braced as to resist the tension of the wires, and, in cases where it should be necessary to cross the tracks of the railroad, to be of sufficient height to raise all wires clear of all other structures upon the right of way. The company agreed to change the location of its poles in the event the railroad desired to change the location of its tracks, or construct new tracks or depots. etc., and that the railroad could take all dirt, etc., from the right of way over which its wires were strung that it might need from time to time, and that it had no right to fence in any of the right of way. Held, that the proposed line would not, if constructed, materially interfere with the public use to which the easement of the railroad company was put.

6. SAME.

Where, in proceedings by a telephone and telegraph company to condemn an easement in the right of way of a railroad company to erect and maintain its poles and wires, the railroad introduced evidence tending to show danger to trains and its railroading operations from the presence of poles and wires along the right of way, arising from storms of wind and sleet, and that if it installed the block system on its road the presence of the poles at curves might interfere with the observation by its trainmen of the signals pertaining to that system, and at the close of the proof asked an instruction in the nature of a demurrer challenging the sufficiency of evidence to make a case entitling the telephone and telegraph company to condemn an easement in the railroad's easement, which was refused, the refusal of such instruction involved a determination by the court of the judicial question whether the proposed easement would materially interfere with the public use to which the easement of the railroad company was put, as against the objection that such question was raised and not determined in the trial court.

7. SAME—PROCEEDNGS TO TAKE PROPERTY—PETITION—SUFFICIENCY.

Where, in proceedings by a telephone and telegraph company to condemn an easement in the right of way of a railroad company to erect and maintain its poles and wires, the termini of the right of way to be acquired were given, the approximate distance of the poles from the track, the size of the poles and cross-arms, the depth that the poles were to be placed in the ground, and the guys, braces, etc., were referred to in such language and with such limitation as to convey definite information to a person versed in constructing telephone and telegraph lines, the easement proposed to be acquired was described with sufficient definiteness and certainty.

8. SAME—JUDGMENT—RESERVATIONS AND LIMITATIONS—EFFECT AS COVENANTS RUNNING WITH LAND.

Reservations, stipulations, promises, and limitations made and placed on an easement acquired in condemnation proceedings by the petition and judgment have the effect of covenants running with the land, and in such a case run with the easement and are binding on the plaintiff company and its successors.

9. SAME—ASSESSMENT OF COMPENSATION—INSTRUCTIONS.

In proceedings by a telephone and telegraph company to condemn an easement in the right of way of a railroad company to erect and maintain its poles and wires, an instruction that the railroad company was entitled to recover all loss and damage that it had or would sustain by reason of injury to its title or right in the land occupied by its road, by reason of the appropriation, taking into consideration its position, existing fences, or structures of any kind connected with its operation as a railroad upon the land, or changes in its surface required by law, or in fact necessary to be made by the railroad company to accommodate its own land to any new improvement which the jury believed the railroad company intended to make upon the land for the purpose of economically and safely transporting passengers and freight over its railroad, and that in estimating the damages the jury should consider any increased difficulty of access to the railroad and any impairment of its capacity for doing business which the railroad would sustain by reason of the appropriation, was properly refused.

10. SAME — COMPENSATION — ELEMENTS OF DAMAGE.

Where a railroad was constructed through a low country, wet in places, and its right of way had been cleared of timber at a great expense, and was fenced, and it was not practicable to have more than one telephone or telegraph line on any one side of its tracks, and one side was already occupied, it could not be held that the right of the company to construct a line on the other side, or rent the same for that purpose, was of mere nominal value.

11. SAME.

Where a railroad was constructed through a low country, wet in places, and its right of way had been cleared of timber at great expense, and was fenced, and the company was under obligation to prevent fires starting on the same, it was proper in proceedings by a telephone and telegraph company to condemn an easement in the right of way to erect and maintain its poles and wires, in determining what was a fair compensation for the right acquired, to take into consideration the improved condition of the land.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Condemnation proceedings by the American Telephone & Telegraph Company against the St. Louis, Iron Mountain & Southern Railway Company. From the judgment, defendant appeals. Reversed and remanded.

Franklin Ferris, Joseph H. Zumbalen, Martin L. Clardy, Eleneious Smith, and L. F. Dinning, for appellant. Phillips & Phillips and Walter J. Terry, for respondent.

LAMM, J.

Plaintiff is a domestic telephone and telegraph corporation, and seeks to condemn an easement for the erection and maintenance of poles and lines in the right of way of defendant railway company from the city of Poplar Bluff in Butler county to the southern boundary of Missouri, a distance of 21 miles. The proceeding progressed through the statutory stages of the filing of plaintiff's petition in the office of the clerk of the circuit court of Butler county, the entry of an order in vacation...