Cumberland Tel. & Tel. Co. v. Morgan

• Citation: 92 Miss. 478,45 So. 429
• Decision Date: 20 January 1908
• Docket Number: 12815
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH COMPANY v. SAMUEL G. MORGAN
• Court: Mississippi Supreme Court

45 So. 429

92 Miss. 478

CUMBERLAND TELEPHONE & TELEGRAPH COMPANY v. SAMUEL G. MORGAN

No. 12815

Supreme Court of Mississippi

January 20, 1908

FROM the circuit court of Itawamba county, HON. EUGENE O. SYKES Judge.

Morgan appellee, was plaintiff in the court below; the telephone company, appellant, was defendant there. From a judgment in plaintiff's favor in the circuit court, on appeal from the special court of eminent domain, the telephone company appealed to the supreme court.

Morgan had a contract with one Camp, by which he was to furnish and erect telephone poles for the use of a telephone line owned and operated by Camp, extending a distance of twelve miles along a public road, and in consideration therefor Camp agreed to furnish him the use of a telephone for life without charge. After this agreement had been carried out for a number of years, the Cumberland Telephone & Telegraph Comparty began to operate the line, and sent appellee a bill for the use of the telephone. Thereupon appellee obtained assignments from many of the landowners, over whose land ran the public road, along which the telephone line had been constructed, the assignments reciting that the parties transferred to appellee all claims and rights against the Cumberland Telephone & Telegraph Company and Camp for damages growing out of the construction and maintenance of the telephone line over the land of the assignors, and conveyed by quitclaim to Morgan the right of way over the lands for the purpose of constructing and maintaining a telephone line on and along the highway where it crosses the land and extending fifty feet on each side of the highway. Morgan then instituted condemnation proceedings in a special court of eminent domain, making the Cumberland Telephone & Telegraph Company defendant. His petition did not allege that he had any right to condemn private property for public use but charged that he owned the right of way over the lands across which the line passed, and asked for condemnation. The special court awarded damages and the telephone company appealed to the circuit court, and in that court Morgan amended his petition, setting forth that he was the owner of fifty feet of land on either side of the public road, and that his possession had been disturbed and encroached upon by the telephone company, and prayed that the petition be treated as the petition of the telephone company, and that for such purpose the defendant be considered as instituting the proceedings. The telephone company moved to dismiss on the ground that the pleading showed on its face that Morgan had no right to institute condemnation proceedings, and the circuit court had no jurisdiction to proceed. This motion was overruled by the circuit court. The telephone company objected to the filing of the amended petition and to its being made a plaintiff or applicant against its will. This objection was disallowed, and the case proceeded to judgment Morgan being awarded damages in the sum of $ 800.

Reversed and dismissed.

Harris Powell & Willing, for appellant.

Appellant's motion in the circuit court to dismiss this cause for the alleged reason that the plaintiff, Morgan, was not entitled to the right to prosecute an eminent domain proceeding, should have been sustained. Code 1906, ch. 43, on the subject of eminent domain, gives a private person no authority to institute such a proceeding in the absence of a proper showing, in the application for such proceeding, that such person has a right to condemn property of others for a public use.

The appellee's petition for eminent domain simply shows that the petitioner, a citizen of the county, owns an easement in the land, and that the telephone company entered it without his consent (which, as a matter of fact, is not however true), and that he asks for an eminent domain court to assess his damages. Surely there is no warrant anywhere for such a curious proceeding. In this case the petitioner had no right to eminent domain proceedings, did not claim to have, and the petition does not show that the condemnation was to be for a public use. The whole proceeding was coram nos judice, and void from its very inception.

In the case of While v. Railroad Co., 64 Miss. 566, 1 So. 730, the court held that, under the provisions of the charter of the railroad company the landowner, on failure to agree with the railroad company, might make application before a justice of the peace for a writ of ad quod damnum. But this was merely because of the express stipulation of the charter. The appellee, Morgan, has no such rights here. He has himself instituted a condemnation proceeding in the name of the telephone company against himself to compel the telephone company to pay him for the easement which he had acquired at a nominal cost. It is shown that the telephone company has continually protested that it does not want the strip of land, did not need it, did not own the line it was operating and of which Morgan complains, and objected throughout to being made a party to the suit. If the telephone company should be required to pay for the one-hundred foot strip, for which appellee has demanded compensatory damages, why stop at that? Why not make it a strip of a width of one thousand feet?

That the appellee joined the telephone company as a party to the suit over the protest of the company, and that the company may have rights of eminent domain, do not change the situation, and can give Morgan no rights whatever to prosecute the case.

The case of Railroad Co. v. Hopson, 73 Miss. 773, 19 So. 718, is not applicable to this case. For such rights as were exercised by the appellee in that case were, similarly to that of the appellant in the White case, supra, exercised by virtue of the stipulations in the charter of the railroad company.

As the special court of eminent domain was not properly constituted, it must follow that the circuit court had no jurisdiction, on appeal. Vinegar Bend Lumber Co. v. Railroad Co., 89 Miss. 104, 43 So. 292.

W. H. Clifton, for appellee.

Chapter 43 of the Code of 1906, on the subject of eminent domain must be construed in this case together with §§ 927, 929 of the code, making a telephone company responsible for damages sustained by any person by the erection and use of its line and giving the company the right of eminent domain. Code 1906, § 927, distinctly states that "in any action for the recovery of damages brought by any owner or possessor of land...