Hodges Et Ux v. Western Union Tel. Co

• Citation: 133 N.C. 225,45 S.E. 572
• Court: United States State Supreme Court of North Carolina
• Decision Date: 27 October 1903
• Parties: HODGES et ux. v. WESTERN UNION TEL. CO.

45 S.E. 572
133 N.C. 225

HODGES et ux.
v.
WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

Oct. 27, 1903.

RAILROADS—CONVEYANCE OP RIGHT OP WAY —CONSTRUCTION—RIGHT TO ERECT TELEGRAPH POLES — STATUTES—DAMAGES—LIMITATION OP ACTIONS—INSTRUCTIONS.

1. Where a deed to a railroad company granted a right of way and easement for the purpose of "surveying, building, constructing, and repairing the road, " the railroad acquired the right to erect and use, so far as reasonably necessary for the operation of the road, a telegraph line, but did not authorize the erection and maintenance of a line of telegraph poles and wires for general commercial purposes.

2. A railroad company, which has acquired a right of way over certain land by conveyance from the owner, cannot grant a telegraph company an easement in the right of way for the erection of poles, wires, etc.

v 2. See Eminent Domain, vol. 18, Cent. Dig. § 317; Railroads, vol. 41, Cent. Dig. 8 182.

3. Where a railroad company sold to a telegraph company all its poles and wires within certain territory, including all appliances in connection with the telegraph line, and defendant erected on the right of way an entirely new line, with larger poles, carrying eight or ten new wires, the conveyance could only be construed as an attempt to confer on the purchaser a right to erect and maintain a telegraph line for general commercial purposes.

4. Where a railroad company, which has acquired by conveyance from a landowner a right of way for its tracks, reasonable telegraph lines, etc., conveys its telegraph lines to a telegraph company, the only effect of the contract is to give the telegraph company a license as against the railroad, without in any manner affecting the rights of the owner of the soil.

5. Where a railroad company granted to a telegraph company the right to erect poles and wires on its right of way, which it had secured by conveyance from a landowner, in a suit by the landowner for damages because of the use of the right of way not within the terms of the conveyance, the question to a witness as to whether the use of a telegraph line was necessary to the operation of a railroad was immaterial.

6. In an action by a landowner against a telegraph company to recover permanent damages because of the erection by the telegraph company of poles and wires across the land, such poles and wires having been erected within three years, plaintiff's right to recover was not barred by the three-years statute of limitations.

7. It was error to charge that, in addition to

the permanent damage, the jury should assess such damages as plaintiff had sustained to the crops within three years.

Appeal from Superior Court, Harnett County; Bryan, Judge.

Action by G. R. Hodges and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

On January 15, 1883, the plaintiff execut-to the Wilmington & Weldon Railway Company a deed reciting that said company contemplated building a branch line of its railroad, etc., and that "for and in consideration of the benefits to be derived from the building of said branch road, and in further consideration of one dollar, " the plaintiff grants to the said company, "its successors and assigns, all the following described rights of entry, rights of way, and other rights, privileges, and easements; that is to say, a free and perpetual right of entry, right of way, and easement at any and all times for the purpose of surveying, building, constructing, operating, altering, improving, and repairing the said branch line of railroad, its depots, station houses, warehouses, bridges, and all necessary erections, and for all other purposes necessary and convenient for the use, operation, and business of the said branch road in, through, and over a strip of land one hundred and thirty feet wide—that is to say, measuring 65 feet on each side of, and at right angles to the center of track or roadbed of the said branch line, " etc. Pursuant to this grant, the company surveyed,

[45 S.E. 573]

located, and built the branch line of road over the plaintiff's land, and operated the same until its assignment of its property and rights to the Atlantic Coast Line, and said assignee has at all times since maintained and operated said railroad. During the year 1888 the 3aid company constructed a telegraph line with one wire and small poles over the line near the roadbed ditch, and a year or two afterwards the defendant placed another wire on the said poles. On June 1, 1880, the Wilmington & Weldon Railway Company entered into a contract with the defendant company, whereby it was agreed that "the railroad company, so far as it legally may, and to the extent of its corporate power, hereby grants and agrees to insure to the telegraph company the right to keep, maintain, and operate its existing line of telegraph, and to construct, maintain, and operate such additional lines and wires as it may elect on and along the line and bridges of the railroad company's right of way, and upon any branches and extensions thereof, " etc. The telegraph company agrees to pay "for the occupancy of said right of way" $14 per mile. There are certain other stipulations, not material to this controversy. "The telegraph company agrees to maintain its line along said railroad in good order and repair, and to set apart one wire for the business of the railroad company exclusively, and for the local commercial offices maintained by it." The seventh clause of the agreement is in the following words: "Neither the terms of this agreement, nor any stipulation herein contained, shall have the effect of creating a covenant of quiet enjoyment, either express or implied, on the part of the railroad company and in favor of the telegraph company, or against the owner of the fee simple of the land over which the railroad company has the right of way." The provisions of the contract are declared to extend "to all roads, branches, and extensions now or hereafter owned or controlled by the railroad company, " and to continue for 20 years. On March 23, 1887, the Wilmington & Weldon Railway Company entered into another contract with the defendant in regard to the erection and maintaining of telegraph poles and wires along said branch road. This contract continued for one year. On March 23, 1888, the said railway company entered into "a supplemental agreement" with the defendant company. By this agreement "the railroad company, for and in consideration of three thousand seven hundred and eighteen dollars, lawful money of the United States...