Louisville & N.R. Co. v. W.U. Tel. Co.

• Decision Date: 04 June 1918
• Docket Number: 3136.
• Citation: 252 F. 29
• Parties: LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F. 29

LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO.

No. 3136.

United States Court of Appeals, Sixth Circuit.

June 4, 1918

Henry L. Stone, Edward S. Jouett, and Helm Bruce, all of Louisville, Ky., for appellant.

Humphrey Middleton & Humphrey and Richards & Harris, all of Louisville, Ky. (Albert T. Benedict, of New York City, of counsel), for appellee.

See also, 201 F. 946.

For 27 years before 1911, the telegraph company had occupied the railroad right of way, in several states, with a line of poles and wires, pursuant to a contract in the nature of a lease. Eventually the telegraph company exercised its elective right to terminate this contract. Failing in agreement upon terms for a renewal contract, the railroad company threatened to evict the telegraph company. The latter filed its bill in the court below, and procured a preliminary injunction restraining any interference with the existing pole and wire line, pending the result of condemnation proceedings which the telegraph company had begun in each of the different states. One of these states was Alabama. An appeal was taken to this court from the order awarding preliminary injunction, and the order was sustained. Louisville Co. v. Western Union Co., 207 F. 1, 124 C.C.A. 573. This court approved the general theory that equity should maintain the existing condition until there was opportunity to prosecute to a conclusion any condemnation proceedings authorized by the statutes of the various states and held that there was jurisdiction to enjoin such interference in other states, as well as in the districts of the state where the bill was filed. Accordingly any such interference in Alabama continued to be prohibited by this injunction. The Kentucky condemnation proceeding has been recently reviewed by this court. Louisville Co. v. Western Union Co., 249 F. 385, . . . C.C.A. . . ., opinion filed May 8, 1918. Further details of the general situation need not be stated, but will be found recited in one or the other of these former opinions.

The condemnation proceeding in Alabama, after varying results, was ended by the decision of the Supreme Court of that state (Western Union Co. v. Louisville Co., 74 So. 946, 1006), holding that the power to condemn did not exist. As to any right claimed under the laws of the United States, this judgment was affirmed by the Supreme Court; and as to any other questions, certiorari was refused. Western Union Co. v. Louisville Co., 244 U.S. 649, 37 Sup.Ct. 743, 61 L.Ed. 1371. Thereupon the railroad company applied to the court below for dissolution of the existing injunction, so far as it affected proceedings in Alabama. By way of answer to this application, the telegraph company applied for and obtained leave to file an amended bill. From these amendments, and other sources, it appeared without dispute that the telegraph company occupied about 1,000 miles of the railroad company's right of way in Alabama; that as to about 600 miles the situation continued as it had formerly appeared to be, and the telegraph company no longer claimed any right to occupy or any right to condemn; but as to the remaining approximately 400 miles the telegraph company claimed an easement for its poles and wires, resulting from condemnation proceedings prosecuted by the predecessor of the telegraph company against the predecessor of the railroad company. The telegraph company alleged that this easement had been so acquired 'long prior to June 18, 1884,' the date of the contract the termination of which in 1911 precipitated the controversy; that this easement over the 400 miles was partly on the same side of the tracks as the telegraph company's existing line and partly on the opposite side; that the easement had never been actually taken possession of and enjoyed, because this had not been necessary, but it had never been abandoned. It further appeared that the telegraph company had filed a bill against the railroad company in the proper trial court in Alabama to obtain a decree establishing such rights of easement and to enjoin the railroad company from denying the right to exercise the same and from interfering with existing lines until the railroad company should permit the telegraph company to remove the poles and wires from the existing line to the old easement line, and that an injunction to this effect, granted by the appropriate Alabama court, is now in force. This amended bill further alleges 'that the easements so shown to belong to this complainant are a part of the system of complainant; that the remainder of the right of way of the railroad company in Alabama occupied by the complainant is likewise necessary to the operation of its general system. ' Upon these facts and allegations, the court below refused the motion to dissolve the injunction as to Alabama, and from the order of refusal, and the order permitting the filing of this amended bill, the railroad company appeals.

Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.

DENISON Circuit Judge (after stating the facts as above).

1. This appeal must be governed by the settled rule that the appellate court will overrule or reverse an order granting a preliminary injunction only when satisfied that there was error of law in the action of the trial court, or that, upon the facts, there was no reasonable field for discretionary action. Louisville Co. v. Western Union Co., 207 F. 1, 4, 124 C.C.A. 573.

2. As to the 600 miles, it is practically conceded (and we suppose it was in the court below) that the injunction should be dissolved, unless the contrary result is to be justified by what counsel call the 'unitary theory.' The telegraph company's lines in Alabama along this railroad, while serving local and independent purposes, are at the same time an integral part of its general system extending over the country and exercising a quasi public function important to the general public interest. These Alabama lines act as roots or branches for trunks in other states, and serve as the main stem for branches and roots in other states. An injury to any one of these members is an injury to the whole; hence it is argued that, as incidental to the protection of that part of the system in Kentucky, the court should also protect that part of the system in Alabama, pending the Kentucky condemnation, or indeed-- we think the argument must go so far-- until condemnation is finished in every state in which it may be attempted. This conclusion is thought to be supported by what this court said upon the former appeal, reported in 207 F. 8, 124 C.C.A. 573.

We do not so view that opinion, and we cannot accede to the position now taken. What we there...