"This is a condemnation proceeding instituted by the Southwestern Telegraph & Telephone Company against the Ft. Worth & Rio Grande Railway Company, and resulting in a judgment in favor of the telegraph and telephone company, in accordance with and subject
to the limitations stated in its petition, and an appeal by the railway company. The essential averments of the plaintiff's petition are as follows:
"`That the plaintiff is a corporation duly incorporated, and is duly authorized and empowered to do business as a telegraph and telephone company in the state of Texas, having complied fully with the requirements of the law relative to foreign corporations in that regard, and holding a permit from the state of Texas to do business therein. And plaintiff further says that it is duly and legally authorized and empowered to erect, own, operate, and maintain magnetic telegraph and telephone lines for the use of the public in the rapid transmission of intelligence in the states of Texas, Arkansas, New York, and elsewhere in the United States of America, being duly chartered for that purpose.'
"`(4) That the said defendant is a public highway and post road of the United States; and that plaintiff has, in all things, complied with the acts of congress of the United States in such cases made and provided, and has filed its written acceptance of all the restrictions and obligations imposed by the acts of congress with the postmaster general of the United States, as is required by law, and that plaintiff is entitled to all the rights and privileges conferred upon telegraph companies by the acts of congress of the United States in such cases made and provided.
"`(5) That the defendant is a private corporation, duly incorporated and organized, and transacting the business usually conducted by railway companies in the public service of carrying passengers, freights, and the United States mails for hire, being a post road. This business defendant conducts through and over its railroad known as Ft. Worth & Rio Grande Railroad, by it owned and operated from and between the cities of Stephenville and Brownwood, in the state of Texas, and passing through the cities of Dublin, Comanche, and other towns in the state of Texas.'
"`(7) That plaintiff has already built and is maintaining a system of several thousand miles of telegraph and telephone lines in the states of Texas, Arkansas, and New York, by it now owned and operated for the use of the public for the rapid transmission of intelligence for commercial purposes, and for other public purposes.
"`(8) That, as an addition to the part of the said system of telegraph and telephone lines now maintained and operated by plaintiff as aforesaid, and to be used for the same purposes as said system (to wit, to the service of the public) and in connection therewith, plaintiff desires to build upon defendant's right of way a telegraph and telephone line, hereinafter called "additional line," from the said city of Stephenville, in Erath county, Texas, in a southerly direction, at a distance near to and parallel with (except as hereinafter shown) defendant's main line of railway, to the city of Brownwood, in Brown county, Texas.
"`(9) That plaintiff and defendant, after considering this matter together, cannot agree upon a purchase by plaintiff of a right of way upon, along, and over said lands and property hereinafter more particularly described for said additional line, nor can they agree as to amount of damages that may be caused to the lands and property of defendant by the construction, operation, and maintenance thereon of the said additional line, hence plaintiff desires to have a right of way along, upon, and over the said lands and property condemned in accordance with law, in order that plaintiff may lawfully construct, operate, and maintain thereon its said additional telegraph and telephone line.
"`(10) That plaintiff shall locate said telegraph and telephone (additional line) at a distance of 35 feet from and in a direction easterly of the center line between the rails of the main track of defendant's railway, and parallel with said center line of said railway, except where deflections are made as herein elsewhere shown; that, in order to do so, it will be necessary and most advantageous for plaintiff to build, operate, and maintain its said (additional) line in, along, upon, and over certain land owned and occupied by the defendant as a right of way for its said railroad, at the place and in the manner herein indicated, which land is hereinafter more fully described, and the points of entering upon and leaving the said land are hereinafter specially given.
"`(11) That the poles, wires, and cross-arms shall be so placed upon said land, and at all times thereon so kept and maintained, as not to obstruct any private roadway or railway crossing; and so as not to impede the free use by the said defendant of the said lands for the purpose of accommodating public travel upon said railway; and so as not to impede the defendant in the use of said railroad for any other purpose as a common carrier; and so as not to obstruct the free use of or come in contact with any other telegraph or telephone line now existing upon the said land along and upon the right of way of the defendant over the same, and in such manner as not to interfere with any structure, drain, or ditch upon the defendant's right or way now there existing and by defendant used in its railway purposes, or that may hereafter be there placed by defendant in the necessary use of its right of way for railway purposes.
"`And plaintiff shall only have an easement in defendant's right of way for the purpose of building, operating, and maintaining thereon its said telegraph and telephone line, having ingress and egress to and from said lands for that purpose; and the building, operating, and maintaining of said line shall not prevent free passage under the wire to defendant, nor the use of timbers, soil
rock, gravel, or any other material between the poles or beyond the wires from the railway; and if the defendant shall at any time desire to change the location of its tracks, or to construct any new tracks or sidetracks, or erect any depots or other structures, or to open any gravel pits or rock quarries, or to remove any material or soil, or in case the poles and wires shall be found to interfere with the running or operating of cars or trains upon defendant's tracks, or to endanger the safety of employés of defendant or passengers traveling on defendant's trains,— then the plaintiff shall remove the poles and wires from the point of interference, at its own cost, to any point on defendant's right of way, or on the same side of defendant's main track of railway, near and adjacent to the former position occupied by said poles and wires as may be designated by defendant, such removal to take place after written notice for a reasonable time to be given plaintiff by defendant, stating why the removal is desired and the place to which the removal shall be made.
"`(12) That, in erecting the said telegraph and telephone line in, along, upon, and over the said tracts of land, it will be necessary and most advantageous for plaintiff to set its poles in the ground in a single line with each other, and parallel with (except as hereinafter shown) the center line, between the rails of the main track of defendant's said railroad, at the distance of 144 1/3 feet each from the next preceding pole in the line, except where different distances between the poles are hereinafter specially given. The poles are to be 25 feet long, 7 inches in diameter at the top, and not exceeding 18 inches in diameter at the lower end, except those poles for which different length and sizes are hereinafter specially given. The poles are to be erected perpendicular to the ground, except as to those hereinafter specified, and set into it 6 feet. To each of these poles, at right angles to it, and at right angles to the center line between the rails of the main track of defendant's railway, are to be firmly and securely attached three cross-arms, each to be 6 feet long and 4 inches by 4 inches in size, and made fast to the poles at a point equidistant from the ends of the cross-arms; the top edges of the three cross-arms shall be 3 inches, 30 inches, and 52 inches respectively below the top of the poles; and upon each side of the poles plaintiff will string wires attaching them to insulators, made fast to strong and durable wooden pins, which pins are to be attached securely to the cross-arms; and the wires shall be so strung that each cross-arm shall support six wires, three on each side of the pole; and the wires shall be strung taut, as above indicated, from pole to pole, for the transmission of plaintiff's telegraph and telephone messages in the service of...
