Buhl v. U.S. Sprint Communications Co.

• Decision Date: 26 October 1992
• Parties: John G. BUHL, Daniel R. Buhl, Regina Winter, James L. Irons and Wife, Bea D. Irons, Kenneth F. York and Wife, Gloria York for Themselves, and All Others Similarly Situated, Plaintiffs- Appellees, v. U.S. SPRINT COMMUNICATIONS COMPANY, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 904

840 S.W.2d 904

John G. BUHL, Daniel R. Buhl, Regina Winter, James L. Irons and Wife, Bea D. Irons, Kenneth F. York and Wife Gloria York for Themselves, and All Others Similarly Situated Plaintiffs- Appellees, v. U.S. SPRINT COMMUNICATIONS COMPANY, Defendant-Appellant.

Supreme Court of Tennessee at Knoxville.

Oct. 26, 1992.

Donald K. Vowell, Knoxville, for plaintiffs-appellees.

John B. Rayson, John T. Buckingham, Knoxville, for defendant-appellant.

OPINION

REID, Chief Justice.

The primary issue presented on this appeal is whether the installation of a telephone cable within an existing railroad right of way, pursuant to an agreement between the telephone company and the railroad company, is a "taking" under the law of eminent domain, for which the owners of the freehold estates are entitled to compensation. The record supports the judgment of the Court of Appeals reversing the trial court's dismissal of the freeholders' claims against the telephone company. The ancillary issue involving the ownership of the York tract is resolved in favor of the plaintiff York.

The plaintiffs, Buhl, Irons, and York, respectively assert ownership in fee of three tracts of land located in Anderson County upon which are located railroad tracks owned by Southern Railway Company (Southern) and used by Southern as a part of its interstate railway system. Southern's predecessor in title acquired an interest in each of those tracts from plaintiffs' predecessors in title prior to the construction of the railroad in the late 1850's. U.S. Sprint Communications Company (Sprint) is engaged in interstate and foreign communications by wire pursuant to 47 U.S. Sec. 151 et seq. It provides to the public various communications services, including domestic long distance telephone services over an all digital fiber optic network. In 1988 Sprint constructed a fiber optics telephone cable across the plaintiffs' tracts of land, within the boundaries of Southern's right of way and approximately 42 inches below the surface of the ground. The cable, which is less than one inch in diameter, extends across 780 miles of Southern's system, 230 miles of which are in Tennessee. The cable was constructed pursuant to a non-exclusive "license agreement" between Sprint and Southern, whereby Sprint agreed to pay Southern $1,200 per mile per year for the original term of 25 years. The cable is not used by Southern in the operation of its railroad; nor does the cable interfere in any way with the operation of the railroad. A separate conduit to be used by Southern was installed at Southern's expense in the trench with Sprint's cable between Knoxville and Clinton, Tennessee, and between Washington, D.C., and Roanoke, Virginia. The only benefit received by Southern for the installation of the telephone cable is the agreed payments.

Southern was a party defendant to the original suit but was dismissed upon summary judgment and is not a party to this appeal.

Each plaintiff insists the construction of the cable constituted an unlawful taking of an interest in his property for which he is entitled to compensation and damages. Sprint contends it acquired from Southern all the rights necessary for the installation of the cable and, therefore, it has no liability to the plaintiffs.

The trial court held that Sprint's construction of the cable did not constitute a taking for which the plaintiffs are entitled to compensation and granted Sprint's motion for summary judgment. The Court of Appeals reversed, holding that the construction of the cable was not a trespass but was a taking for which plaintiffs Buhl and Irons are due compensation. The Court of Appeals found that plaintiff York's predecessor in title had conveyed the fee simple estate to Southern's predecessor rather than an easement and affirmed the dismissal of York's suit.

Two related issues must be resolved: the nature of the interest owned by Southern in each of the three tracts involved and whether the installation of the cable constitutes a burden on the estates owned by the plaintiffs.

The resolution of the first issue, the interest owned by Southern, is dependent upon the construction of the instruments whereby Southern's predecessor acquired its interest in the respective tracts. The property interest in the York tract was acquired by deed, while interests in the Buhl and Irons tracts were acquired by charter presumption, pursuant to the charter granted to Southern's predecessor by the General Assembly.

Neither the trial court nor the Court of Appeals discussed York's contention that the interest in his tract acquired by the railroad company was an easement rather than the fee. The trial court dismissed the complaints of all three plaintiffs on the ground that they failed to state a cause of action. The Court of Appeals affirmed the dismissal of York's claim, stating only that York's predecessor in title conveyed a fee to the railroad.

The pertinent portion of the York deed is as follows:

Know all men by these presents I J M Slaughter of the County of Anderson and State of Tennessee in consideration of the benefits to be derived from the road and the further consideration of fifty dollars to me in hand paid the receipt of which is hereby acknowledged have this day bargained sold transferred and conveyed to the Knoxville and Kentucky Railroad Company forever the right of way and the roadbed and as many feet as may be necessary from the center of said roadbed each way along and through the tract of land on which I now live and where said road has been commenced and I further agree make all the cropway of said road that I may [blank in original] [illegible] free of charge [blank in original] as the same may be surveyed and located by the engineer of said company to build a railroad from Knoxville in the direction of the Kentucky line but it is hereby distinctly understood and agreed that the event said company does not build said road or does not locate it over the lands aforesaid then this deed to be void and the title to revert to me, my heirs or [illegible]. And it is further understood that the said railroad company shall use occupy and enjoy the aforesaid lands thus conveyed for purposes legitimately connected with the road and for none other whatever. In testimony of all which I have hereto set my hand and seal on this first day of January, 1857.

From this instrument, it appears that the interest conveyed was the "right of way and the roadbed," the metes and bounds of the property conveyed are "as many feet as may be necessary from the center of said roadbed each way along and through the tract of land on which I now live ... as the same may be surveyed;" and the purpose for which the property was to be used was "to build a railroad from Knoxville in the direction of the Kentucky line[,] ... purposes legitimately connected with the road and for none other whatever." It will be noted the instrument contains no habendum clause.

The intention of the grantor with regard to the interest conveyed is not without doubt; consequently, resort will be had to rules of construction. In Nashville, Chattanooga & St. Louis Railway v. Bell, 162 Tenn. 661, 39 S.W.2d 1026 (1931), the Court discussed the rules of construction applicable to conveyances to railroad companies. The Court stated:

The estate acquired by the railroad company is to be determined from the intention of the parties gathered from the deed construed in connection with the company's charter, or governing statutes, and, in case of ambiguity, if any, in the light of the circumstances surrounding the execution of the deed. Such is the rule stated in our recent cases of Pemberton v. Railway, 162 Tenn. 65, 34 S.W.(2d) 444, and Farrar v. Railway, 162 Tenn. 313, 36 S.W.(2d) 95.

39 S.W.2d at 1027. The Court distinguished between the grant of a right of way and a fee, as follows:

"A 'right of way' in its legal and generally accepted meaning in reference to a railroad company's interest in land is a mere easement for railroad purposes in the lands of others; and therefore, as a general rule, where land obtained by purchase or agreement is conveyed by an instrument which purports to convey a right of way only, it does not convey title to the land itself, but the railroad company acquires a mere easement in the land for right of way purposes, leaving the fee subject to such servitude in the owner." 51 C.J. Sec. 203, p. 539.

. . . . .

On the other hand:

"A grant or conveyance to a railroad company which has power to acquire by purchase such real estate as may be necessary for the construction and operation of its road, and to take a fee-simple title thereto, will be held to convey a fee-simple title in the land and not a mere easement where such appears to be the intention of the parties as construed from the instrument as a whole, particularly where the conveyance is in the usual form of a general warranty deed, or quitclaim deed, without any words of limitation or restriction and without purporting to convey merely a right of way." 31 C.J. Sec. 202, p. 537.

Id., 39 S.W.2d at 1028. The Court then noted that, in addition to the language of the instrument, the situation of the parties and the size, shape, and location of the tract may reflect the intention of the grantors. In that case, the property was located inside Union City, the boundaries of the ten-acre tract conveyed were precisely described, the property was L-shaped, and, though not noted in the deed, it included the site on which was located the railroad depot. The Court, finding that the size and shape of the tract rebutted the inference that only an easement was intended, held that the instrument conveyed the fee.

In Lillard v. Southern Railway, 206 Tenn. 1, 330 S.W.2d 335, 336 (1959), the Court construed language very similar to that in the instant case, to convey an easement for railroad purposes rather than a fee simple. The instrument of conveyance was a...