Cleveland, C., C. & St. L. Ry. Co. v. Ohio Postal Telegraph Cable Co.

• Decision Date: 19 May 1903
• Citation: 68 Ohio St. 306,67 N.E. 890
• Court: Ohio Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. OHIO POSTAL TELEGRAPH CABLE CO. et al.

67 N.E. 890

68 Ohio St. 306

CLEVELAND, C., C. & ST. L. RY. CO. v. OHIO POSTAL TELEGRAPH CABLE CO. et al.

Supreme Court of Ohio.

May 19, 1903

Error to Circuit Court, Crawford County.

Action by the Ohio Postal Telegraph Cable Company and others against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed.

On August 30, 1899, the defendant in error the Ohio Postal Telegraph Cable Company filed in the probate court of Crawford county its petition against the plaintiff in error and the holders of certain trust deeds securing certain bonded indebtedness owing by the railway company, the purpose and prayer of which petition were to obtain by appropriation the right of the Ohio Postal Telegraph Cable Company to enter upon and occupy, for the erection and operation of its telegraph line, 5 feet of the right of way of the plaintiff in error, from the city of Cleveland, Ohio, to the state line at Union City; the 5 feet to be of the outer and southerly part of said right of way. The right to make the appropriation is asserted under the provisions of sections 3456 to 3459, inclusive, Rev. St. 1892. The plaintiff in that proceeding in the probate court alleged its corporate capacity under the laws of Ohio, and that the railway company owns a right of way for railroad purposes, about 100 feet in width from Cleveland to Union City, and that the petitioner needed a line of telegraphic communication between these cities and beyond, and that the most direct, safe, and practicable route for the construction of its line is on and along the right of way of said railway company, and that the board of directors of the telegraph cable company had duly adopted a resolution declaring it to be necessary to appropriate the right to use 5 feet of the southerly said of the right of way, and that it had been unable to agree with the railway company as to the compensation to be paid. The petition further details the character of poles to be erected, the wires to be strung, and other fixtures which the telegraph cable company would place on the strip so to be appropriated; also ‘ that the erection of the line of telegraph upon the right of way will not in any material degree interfere with the practical or usual and ordinary uses to which said railway company is authorized to put such right of way.’ The petition was afterwards amended to claim the right of appropriation from a point one-half mile west of Berea Station, in Cuyahoga county, on the southerly side of the right of way, to Shelby Station, in Richland county, thence across the right of way to the northerly said thereof, and to continue on the northerly 5 feet of the right of way to Union City, on the state line. After service had been duly made, the railway company filed an answer, upon which the preliminary hearing was had in the probate court. The answer is a general denial of each and every allegation in the petition and the amendments made thereto.

It is stated in briefs of counsel that on the hearing the Ohio Postal Telegraph Cable Company introduced as part of its evidence the charter issued to it by the state of Ohio, the organization of the company thereunder, election of officers and certain proceedings of its board of directors declaring the necessity for appropriating the portion of the right of way, and that thereupon the railway company sought to defeat the right of the telegraph cable company to institute the proceedings by showing that there had been no payments made upon any of its had been no without which it could transact no business. This latter point seems to have failed, no doubt because it is immaterial; and, after hearing the evidence offered, the probate court made the following findings and order: ‘ Tuesday, January 16, 1900. This cause having been continued from the ___ day of November, A. D. 1899 being the day theretofore fixed by the court for the hearing of this cause, until the 27th day of November, A. D. 1899 upon said last-named date came the plaintiff by its attorneys, and also the defendant the Cleveland, Cincinnati Chicago & St. Louis Railway Company, by its attorneys and this cause came on for hearing upon the petition of the plaintiff filed herein, and the answer of said defendant railway company, all of the defendants having been duly and legally served with process or by publication herein, and upon the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owners of the property, and the necessity for the appropriation, and the same was heard upon the evidence offered by the parties, and was argued by counsel, and the court, not being fully advised in the premises, took the same under advisement; and now, on this 16th day of January, A. D. 1900, the court, being fully advised in the premises, do find that the plaintiff is a corporation, and has a legal right to make the appropriation of the property described in the petition, as prayed for; that the plaintiff is unable to agree with the owners of the property as to the amount of compensation to be paid therefor; and that there is a necessity for such appropriation as prayed for in the petition; and the court, proceeding as directed by statute, orders and directs that a jury be drawn as required by law, returnable at a time to be hereafter fixed by the court. To all of which findings of the court the defendants at the time excepted. Charles Kinninger, Probate Judge.’ The railway company filed a motion for a new trial March 3, 1900. This motion was overruled on March 3, 1900. This a bill of exceptions as to the proceedings on preliminary hearing was allowed for the railway company April 23, 1900. After making the findings and order of January 16, 1900, the probate court ordered a jury to assess to the railway company compensation on account of the appropriation. A jury was drawn and impaneled, and the case heard. A verdict of $6,750 was returned by the jury and confirmed by the court. The motion for new trial filed by the telegraph cable company was overruled. One of the grounds of the motion was that the verdict was excessive. Error was prosecuted in the court of common pleas by the postal telegraph cable company to reverse the probate court and obtain a new trial. The court of common pleas found error, and reversed the judgment of the probate court, and set aside said verdict, but retained the case for trial in the court of common pleas as to the question of compensation. Trial was had to a jury in that court, and a verdict for $500 compensation returned March 25, 1901, which verdict was confirmed on March 30, 1901. During the trial, exceptions were taken to the exclusion of evidence offered by the railway company, and also exceptions to the charge of the court, and for refusing to charge as requested. Error is prosecuted in this court by the railway company to reverse the judgments of the lower courts.

Syllabus by the Court

1. In a proceeding instituted in the probate court by a magnetic telegraph company, under the provisions of sections 3456 to 3459, inclusive, Rev. St. 1892, for the purpose of appropriating to its use a part of the right of way of a railroad company organized under the laws of Ohio, it is recessary and jurisdictional for that court to hear and determine, and so enter of record, that the easement sought to be appropriated by such telegraph company will not in any material degree interfere with the practical uses to which the railroad company is authorized to put such right of way. The burden of proof to establish that fact is upon the telegraph company, and, until the court has so determined, it is without jurisdiction to order an appropriation, and impanel a jury for the assessment of compensation to the railroad company.

2. When the necessary preliminary facts are found as prescribed by the statute, and the case proceeds to an inquiry as to the compensation due the railroad company, the measure of compensation is the amount of decrease in the value of the use of the right of way for railroad purposes which will result from the easement appropriated and used by the telegraph company.

E. A. Foote, John T. Dye, and H. D. Estabrook, for plaintiff in error.

Henry & Robert Newbegin and Frank L. Loesch, for defendants in error.

PRICE, J. (after stating the facts).

The controversy between the parties to this case opened in the probate court of Crawford county in August, 1899, and it has been carried on with unremitting vigor through that and the intervening courts, and its various phases have been elaborately presented to this court in briefs. Some of the arguments and a large amount of statistical and historical matter found in the almost unlimited brief for plaintiff in error are wholly superfluous, and we are asked to pass upon numerous questions which counsel discuss therein, many of which are no longer material, and tend only to obscure, if not to lose sight of, the necessary vital points found in the record. Sifting the wheat from the chaff of the case, the subject of our labor may be divided into two branches: (1) The proceedings had on the petition of the Ohio Postal Telegraph Cable Company against the railway company in the probate court for the purpose of appropriation to its use of part of its right of way, and which is called the ‘ preliminary hearing; ’ (2) the questions arising on the trial before the jury for the assessment of compensation to the railway company.

1. It is forcibly pressed upon our attention by counsel for defendant in error that, by reason of the neglect of plaintiff in error, the proceedings at the preliminary hearing are not before us, because its motion for a new trial was not filed within the statutory time in...