Atl. Coast Line R. Co v. Postal Tel. Cable Co

• Citation: 120 Ga. 268,48 S.E. 15
• Parties: ATLANTIC COAST LINE R. CO. v. POSTAL TELEGRAPH CABLE CO.
• Decision Date: 09 June 1904
• Court: Supreme Court of Georgia

48 S.E. 15
120 Ga. 268

ATLANTIC COAST LINE R. CO.
v.
POSTAL TELEGRAPH CABLE CO.

Supreme Court of Georgia.

June 9, 1904.

EMINENT DOMAIN—AWARD—APPEAL—ISSUES— TELEGRAPH COMPANY—RAILROAD RIGHT Of WAY — EASEMENT ACQUIRED—EXTENT—DAMAGES.

1. The telegraph company instituted proceedings against the railroad company in the county where the main office of the latter was located. The award was filed in the office of the clerk of the superior court of the county where the proceedings were had, and an appeal taken to the superior court of this county. This appeal was authorized by the law providing for condemnation of a railroad's right of way for telegraph purposes. Civ. Code 1895, §§ 4077, 4678; Acts 1898, p. 5.

2. On the appeal from the award of the assessors in the condemnation proceeding, the issue of fact for the jury is the amount of compensation to be paid for the property taken or damaged for public purposes.

3. A telegraph company acquires only an easement to the right of way of a railroad company condemned for the purpose of constructing and operating a telegraph line thereon.

4. The easement acquired embraces the land actually occupied by the poles and fixtures for guy wires, and the right to stretch the wires upon the poles, and to enter upon the right of way to construct and repair the telegraph line.

5. The only exclusive right of occupancy the telegraph company acquires by condemnation proceedings is the occupancy of the land occupied by the poles for telegraph purposes.

6. The measure of damages in such cases is the value of the land actually taken, and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company.

7. The right of way of a railroad company has no general market value for other uses than that to which it is applied. The appropriation to public use amounts to a withdrawal of the right of way from any use except that which is necessary or auxiliary to the operation of the railroad.

8. Peculiar advantages and benefits accruing to a telegraph company from its use of the railroad's right of way cannot be considered in the assessment of damages. The railroad company can only claim compensation for its land taken, and damages resulting from the construction and maintenance of the telegraph line. A burden not imposed by the telegraph company is not an element of damages. Thus there was no error in excluding evidence as to the cost of the change of grade, or the clearing of the right of way and keeping it free from obstructions.

9. Remote or speculative damages cannot be recovered. The bare suggestion that at some vague time in the future the railroad company may lay additional tracks or build structures for railroad purposes is too remote to authorize the admission of evidence of the damage which might result from such possible contingencies. In its notice of condemnation, the telegraph company stipulated that, should such contingencies happen, it would remove at its own expense the poles and wires, so as not to interfere with such extensions and improvements.

10. The possibility of poles placed at a greater distance than their height from the track falling upon the track is too remote to be considered in estimating damages.

11. Annoyances and inconveniences to the railroad company must be real, and of such a character as to interfere in some manner with the railroad's right to exercise its business, to become an element of damage.

12. The benefit a railroad company may derive from a contract with another telegraph company already occupying its right of way is not an element of damage. The measure of damage includes, not what another telegraph company may contract for certain privileges, but the extent such contract would be impaired by the construction of the second line of telegraph.

13. The form of the verdict, while irregular, covered all of the issues involved, and the amount found by the jury is sustained by the evidence.

(Syllabus by the Court.)

Error from Superior Court, Chatham County; P. E. Seabrook, Judge.

Condemnation proceedings by the Postal Telegraph Cable Company against the Savannah, Florida & Western Railway Company. The Atlantic Coast Line Railroad Company was made a party in lieu of the Savannah, Florida & Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. L. Clay, for plaintiff in error.

J. R.Mcintosh and Garrard & Meldrim, for defendant in error.

EVANS, J. On September 8, 1900, the Postal Telegraph Cable Company caused to be served upon the Savannah, Florida & Western Railway Company a notice that condemnation proceedings would be instituted against it in order to secure the privilege of constructing a telegraph line along its right of way from Albany to Thomasville and from Thomasville to Valdosta. This notice was on the same day filed in the office of the clerk of the superior court of Chatham county. On September 20, 1900, the railway company filed a petition for injunction against the Postal Telegraph Cable Company, alleging that there was no authority of law for the proposed condemnation proceedings, and that the statutes under which the latter company claimed the right to condemn were, for various reasons stated, unconstitutional and void. On the same day the railway company sent a response to the notice above referred to, therein advising the Postal Telegraph Cable Company that, in naming the person to act as the arbitrator selected by the railway company, it did so subject to its petition for injunction, and without any prejudice whatsoever to its rights in the premises. Subsequently the railway company filed an amendment to its petition for injunction, and an interlocutory hearing was had thereon upon the 22d of November, 1900; the judge setting aside the restraining order previously granted, and refusing to grant a temporary injunction. To this action of the judge the railway company excepted, and

[48 S.E. 16]

brought the case to this court for review, and on February 28, 1901, the judgment of the lower court denying the injunction was affirmed. See 112 Ga. 941, 38 S. E. 353.

Shortly after tbe interlocutory hearing on the petition for injunction, and before the decision of this court was rendered, to wit, on December 31, 1900, the railway company appeared before the board of assessors who had been selected to conduct tbe condemnation proceedings, and, without waiving any of its rights under its petition for injunction, filed objections in writing to the further progress of those proceedings. One of these objections was that the notice of condemnation was legally insufficient, in that it did not point out with reasonable certainty and defi-niteness the location of the lands sought to be condemned. The Postal Telegraph Cable Company thereafter amended this notice over the objection of the railway company. Despite its protests, the board of assessors proceeded with the investigation, and on January 5, 1901, rendered an award for the sum of $6,000 as compensation for the property rights of the railway company which the Postal Telegraph Cable Company sought to condemn. On January 16, 1901, the Postal Telegraph Cable Company, being dissatisfied with the amount of this award, entered an appeal to the superior court of Chatham county. On the 13th of March following, the railway company filed in that court a "motion to dismiss and quash said condemnation proceedings, " and to declare null and void the award therein rendered. The grounds of this motion were (1) that the condemnation proceedings were without authority of law, in that the statutes upon which they were predicated were unconstitutional and void; (2) that the act of December 20, 1898 (Acts 1898, p. 54), amending certain sections of the Code, "makes no provision whatsoever for the appointment of an assessor in the event the landowner or the railway company, or other person interested, shall fail to appoint an assessor, or if the owner of the land sought to be condemned shall fail to agree upon an assessor, or if the owner is unknown, " and that the statutes of this state which relate to the selection of an assessor to act in behalf of the landowner or other person interested "are inapplicable in this case, where one condemnation proceeding is instituted to condemn land located in five (5) separate and distinct counties, " wherefore said act of 1898 is class legislation, and in conflict with the Constitution of the United States, which provides that no person shall be denied the equal protection of the laws or deprived of property without due process of law, etc., as well as violative of the Constitution of the state of Georgia, for like reasons; (3) that the act of 1898 is further in conflict with the Constitutions of this state and of the United States, because it "fails to make any provision for the appointment of a third assessor in the event the two assessors selected shall fail to agree upon a third, " does not provide any machinery for determining the necessity of condemning land or property rights therein for the use of the public, makes no provision for the filing of an award, or for entering an appeal therefrom, and is too vague and indefinite to authorize the condemnation of a railway right of way for use by a telegraph company; (4) that the act of 1898 is "contrary to the Constitution of the state of Georgia, which provides that all cases respecting the title for land shall be tried in the county in which the land is situated, " for the reason that said act provides "for the institution and trial of condemnation proceedings in counties other than that in which the land is situated, " and authorizes the assessors to render an award without going on the land sought to be condemned and conducting the hearing on the premises, as in other cases provided; (5) that the notice of condemnation did not describe the land sought to be condemned with sufficient certainty, and for that reason the notice was too...