Ball v. American Tel. & Tel. Co.
| Decision Date | 19 March 1956 |
| Docket Number | No. 39998,39998 |
| Citation | 86 So.2d 42,227 Miss. 218 |
| Parties | F. E. BALL v. AMERICAN TELEPHONE and TELEGRAPH COMPANY. |
| Court | Mississippi Supreme Court |
Williams & Williams, H. H. Parker, Poplarville, for appellant.
M. M. Roberts, Hattesburg, Morse & Morse, J. B. Mayfield, Poplarville, J. C. Higgins, Cincinnati, Ohio, for appellee.
The appellee, American Telephone and Telegraph Company, a New York corporation, qualified to do business in the State of Mississippi, filed its petition in the Circuit Court of Pearl River County, Mississippi, seeking to exercise the power of eminent domain and prayed for the organization of a special court of eminent domain. The petition alleged that the petitioner was authorized by its charter to engage in the business of furnishing facilities for communications between the various states of the United States, and that it proposed to construct as an addition to its present facilities new telephone and telegraph lines, being a new communication extending from the City of Jackson, Mississippi, to New Orleans, Louisiana, by way of Pearl River County, Mississippi, and that the rights and interests sought to be acquired over and under appellant's land were as follows:
'A right of way and easement to construct, operate, maintain, repair, replace and remove such telegraph and telephone and/or communication system as the petitioner, its successors and assigns, may from time to time require, consisting of underground cables, wries, conduits, splicing boxes and surface testing-terminal, repeaters and markers and other appurtenances upon, over and under a strip of land one rod wide across the above described land, together with the following rights, to place surface markers within said strip, to clear, and keep cleared all trees, roots, brush and other obstruction from the surface and subsurface of said strip and to install temporary gates in any fences crossing said strip.'
On the trial in the special court of eminent domain, damages were fixed at $500. The sum was paid into court and construction of the facilities was begun by appellee and proceeded to completion. Appellant appealed to the circuit court, where the jury awarded the sum of $1,500 damages, and the $1,000 additional damages was paid into court. Appellant has never accepted these awards. No further appeal was had from the eminent domain proceedings, and final judgment in condemnation was entered by the circuit court on November 6, 1952.
On January 13, 1954, appellee filed in the chancery court of Pearl River County, Mississippi, a bill of complaint, seeking to enjoin appellee from using the right of way for television purposes, and enjoining appellee from going through or over complainant's property for any purpose whatsoever, and seeking to cancel the right of way condemned in the eminent domain proceedings as a cloud on the appellee's title and for damages in establishing the right of way, and for general relief. The bill charged that appellee had no right or authority to exercise the right of eminent domain for constructing a television line and us of the right of way for such purpose was not authorized by law; that such use was a private use and the judgment of the eminent domain court was void and the use being made of the right of way was without right and authority, and appellant was being deprived of his property without due process of law and in violation of Section 17 of the Mississippi Constitution. An amendment to this bill charged that appellee masqueraded in the eminent domain court as a telephone and telegraph company to obtain complainant's property for a television line, and was guilty of fraud upon the eminent domain court and upon appellant in securing rights to lay a television transmission line.
The proof in the injunction proceedings, insofar as we are here concerned, consists of the testimony of an official of the American Telephone and Telegraph Company. His testimony was to the effect that the facilities laid under the right of way acquired through appellant's land consisted of a cable of about two and one-half inches in diamester, sheathed in lead, with wires and coaxial cables contained therein, and installed 30 inches deep in the ground, with stakes about 500 feet apart indicating the right of way; that the only surface equipment are the markers so as to be able to follow the cable line; that the cable line is under gas pressure containing an inert nitrogen gas to keep moisture out of the cable; that the cable contains 8 coaxial tubes about the size of a pencil with about 160 small copper wires in the center, surrounded by...
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