Gulf, C. & S. F. Ry. Co. v. Southwestern Teleg. & Teleph. Co.

• Decision Date: 23 March 1898
• Citation: 45 S.W. 151
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

45 S.W. 151

GULF, C. & S. F. RY. CO. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

Court of Civil Appeals of Texas.

March 23, 1898.

Appeal from Hunt county court; W. H. Ragsdale, Judge.

Proceeding by the Southwestern Telegraph & Telephone Company against the Gulf, Colorado & Santa Fé Railway Company to condemn certain land owned by defendant for a right of way for its telegraph and telephone line, and for the appointment of commissioners to assess the damages. Judgment for plaintiff. Defendant appealed. Affirmed.

Craddock & Looney, for appellant. McLaurin & Wozencraft, for appellee.

FLY, J.

The Southwestern Telegraph & Telephone Company applied to the county judge of Hunt county for the appointment of commissioners to assess the damages to be sustained by appellant by the maintenance of a telegraph and telephone line upon certain tracts of land owned by appellant. The commissioners were appointed, and an award returned by them, to the effect that the damages would amount in the aggregate to $15. Appellant filed exceptions to the petition and award, which were overruled by the court, and judgment rendered, giving appellee right of way over the land upon payment of the sums awarded by the commissioners.

The first assignment of error presents the proposition that appellee, being incorporated, not as a telegraph company, but as a telegraph and telephone company, was not authorized by law to exercise the right of eminent domain. This contention is based on the fact that there is no provision made in the statute for the exercising of the power of eminent domain by telephone companies, the only corporations given this power by title 21, c. 7, Rev. St. 1895, being telegraph companies. In Thompson on the Law of Electricity (section 101) it is said: "A telephone being a new species of telegraph, it has been held that a statute applicable to the incorporation of telegraph companies may be deemed to apply to telephone companies, although the latter are not named." The text is amply sustained by numerous decisions. Wisconsin Telephone Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. 828; Roberts v. Wisconsin Tel. Co. (Wis.) 46 N. W. 800; Cumberland Telephone & Telegraph Co. v. United Electric Ry. Co., 42 Fed. 273; Dolbear v. Telephone Co., 126 U. S. 1, 8 Sup. Ct. 778; Chesapeake & P. Tel. Co. v. Baltimore & O. Tel. Co. (Md.) 7 Atl. 809. We are of opinion that the decisions cited are founded upon common sense and reason, and that the term "telegraph lines," used in the statute, includes "telephone lines," each one being constructed for the same purpose, namely, the transmission of messages by wires acted on by electricity.

The...