Louisville & N.R. Co. v. Western Union Telegraph Co.

• Decision Date: 22 July 1913
• Docket Number: 2,456.
• Citation: 207 F. 1
• Parties: LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 1

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

No. 2,456.

United States Court of Appeals, Sixth Circuit.

July 22, 1913

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Helm Bruce and H. L. Stone, both of Louisville, Ky., for appellant.

Richards & Harris and Humphrey, Middleton & Humphrey, all of Louisville, Ky. (Rush Taggart and George H. Pearsons, both of New York City, of counsel), for appellee.

Before WARRINGTON, KNAPPEN and DENISON, Circuit Judges.

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

The general rule by which this court should be governed in reviewing orders relating to injunction, temporary or interlocutory, is that the order will not be disturbed unless it appears that the court below has exercised its discretion upon a wholly wrong comprehension of the facts or law of the case; or, otherwise stated, that the legal discretion vested in the court to grant or withhold the order was improperly exercised. Interurban Ry. & T. Co. v. Westinghouse Elec & Mfg. Co., 186 F. 166, 170, 108 C.C.A. 298, and cases there cited; City of Shelbyville v. Glover, 184 F. 234, 238, 106 C.C.A. 376, and cases cited. If, however, there appears any insuperable objection in point of jurisdiction or merits to the maintenance of the suit, the court should at least reverse the order for injunction (Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co., 72 F. 545, 550, 19 C.C.A. 25; Mayor, etc., of Knoxville v. Africa, 77 F. 501, 505, 23 C.C.A. 252; City of Shelbyville v. Glover, supra, at page 238 ), and may properly dismiss the bill of complaint (Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 495, 20 Sup.Ct. 708, 44 L.Ed. 856; Harriman v. Northern Securities Co., 197 U.S. 244, 286, 25 Sup.Ct. 493, 49 L.Ed. 739; U.S. Fidelity Co. v. Bray, 225 U.S. 205, 214, 32 Sup.Ct. 620, 56 L.Ed. 1055; City & County of Denver v. New York Trust Co., 229 U.S. 123, 33 Sup.Ct. 657, 57 L.Ed. 1101, decided by the Supreme Court May 26, 1913). In such case there could be no room for the exercise of discretion in granting or refusing to dissolve the injunction.

By section 3964, Rev. Stat. United States (U.S. Comp. St. 1901, p. 2707), all railroads in operation are made post roads. By the act of July 24, 1866 (14 Stat. 221, c. 230; Rev. Stat. Sec. 5263, and following (U.S. Comp. St. 1901, p. 3579)), telegraph companies are given the right to construct and operate their lines along and over post roads. But it has been held that this latter statute does not confer the power of eminent domain. Western Union Tel. Co. v. Pennsylvania R.R. Co., 195 U.S. 540, 560, 25 Sup.Ct. 133, 49 L.Ed. 312, 1 Ann.Cas. 517. The telegraph company is, however, a public service corporation. Its activities are of public, and not merely of private, concern. When the bill in this cause was filed, it was operating, over the railway lines in question, an important part of its telegraph system, which extends over the entire United States, and has important foreign connections. It serves not only private customers, but the state and national governments and their representatives. Any interruption of the service of the telegraph company may well result in an interruption of public service.

When the bill was filed the telegraph company was occupying the railway company's right of way by virtue of a previous contract therefor; and, while its right to so occupy under the contract had ceased, it was prosecuting in various of the states statutory proceedings for the acquirement of interests necessary to the continued occupancy of such rights of way. Courts of equity under these circumstances have the power to enjoin interference by the railroad company with such possession by the telegraph company, at least in the jurisdictions in which such proceedings are pending, for such reasonable time as may be required to prosecute to conclusion the various pending condemnation proceedings, assuming, of course, the existence of a meritorious cause, and further assuming the validity and applicability of state statutes authorizing such condemnation. Winslow v. B. & O. Ry. Co., 188 U.S. 646, 660, 23 Sup.Ct. 443, 47 L.Ed. 635; Owensboro, etc., Ry. Co. v. Harrison, 94 Ky. 410, 22 S.W. 545. Appellant insists, however, that the federal court, sitting in Kentucky, has no jurisdiction over the property involved so far as it lies outside the state of Kentucky, and so has no power to enjoin interference with the telegraph property outside that state; that the Kentucky statute of condemnation invoked by the telegraph company is unconstitutional and void, for various reasons; that appellee has no charter power to condemn the lands in question; that relief is precluded through laches, lack of equity, and estoppel; that the situation with respect to certain of the pending condemnation proceedings is such as to preclude injunction in aid thereof; and that on the merits appellee is without standing.

1. Had the District Court, sitting in Kentucky, jurisdiction to enjoin the threatened acts of interference in states other than Kentucky?

The general rule is well established that where the necessary parties are before a court of equity it is immaterial that the subject-matter of the controversy, whether real or personal property, is beyond the territorial jurisdiction of the court. In such case the power exists to compel the defendant to do all things necessary, which he could do voluntarily, to give full effect to the decree against him. Courts in such cases consider the equities between the parties, and make decrees in personam, according to such equities, enforcing obedience to their decrees by means of process against the person. This principle has been recognized in numerous cases, among the more prominent of which are: Massie v. Watts, 6 Cranch, 149, 3 L.Ed. 181; Muller v. Dows, 94 U.S. 444, 449, 24 L.Ed. 207; Phelps v. McDonald, 99 U.S. 298, 308, 25 L.Ed. 473; Philadelphia Co. v. Stimson, 223 U.S. 605, 622, 32 Sup.Ct. 340, 56 L.Ed. 570. See, also, Robertson v. Howard, 229 U.S. 254, 33 Sup.Ct. 854, 57 L.Ed. 1174, decided by the Supreme Court June 10, 1913. In such cases the decree, of course, does not operate upon the res, but only upon the person of the defendant. Fall v. Easton, 215 U.S. 1, 8, 30 Sup.Ct. 3, 54 L.Ed. 65, 23 L.R.A. (N.S.) 924, 17 Ann.Cas. 853, and following, and cases there cited.

Appellant contends that this principle applies only to cases of fraud, trust, and contract, and so is without application here. It is true that Massie v. Watts and Phelps v. McDonald involved charges of fraud, and that Muller v. Dows was an action for the foreclosure of a mortgage upon land in more than one state, and so was based upon contract. It is also true that in Massie v. Watts the principle was stated as applying to cases of 'fraud, of trust, or of contract. ' But we have found nothing in any of the cases to which our attention has been called limiting the jurisdiction to such cases. On the other hand, there is no apparent reason for such limitation. Indeed, in Philadelphia Co. v. Stimson, 223 U.S., at page 623, 32 Sup.Ct. 345, 56 L.Ed. 570, which was not a case of fraud, contract, or trust, the Supreme Court of the District of Columbia was expressly held, upon a bill filed to set aside certain harbor lines in the harbor of Pittsburgh, Pa., to have jurisdiction to restrain the Secretary of War from causing a criminal proceeding to be instituted against complainant because of the reclamation and occupation of its land outside the prescribed limits. It was there said:

'The defendant is within the district, amenable to the process of the court. There is no ground upon which it may be denied jurisdiction to decide whether he should be restrained from continuing his opposition to the complainant's plan of improvement. Rather should it be said that the case falls within the general rule sustaining the jurisdiction of a court of equity which has control of the person of the defendant and may compel obedience to its decree. Phelps v. McDonald, 99 U.S. 293, 308 (25 L.Ed. 473).' But appellant contends that an action for the threatened interference with appellee's poles, wires, and equipment is merely local, and so could be brought only in a court having jurisdiction over the territory in which the injury is committed. But is the threatened interference merely local? Assuming for the moment that such interference with the poles, wires, and equipment would affect only the physical structures involved, even then, except so far as the properties threatened were real in nature, the action would seem to be transitory. An interference by appellant with the poles would not have been a trespass upon real property, both because appellant was in possession of the right of way, and, even more so, because, the contract having expired, together with the easement of support for the poles, the latter had no real estate character. The case before us is not a proceeding in rem. Its purpose was to preserve the status quo until appellee's rights of expropriation can be determined by the state courts. The cases principally relied upon by appellant in support of its contention are not controlling. For example: In Northern Indiana R.R. Co. v. Mich. Central R.R. Co., 15 How. 233, 14 L.Ed. 674, it was held that the United States Circuit Court for the District of Michigan had no jurisdiction to restrain the building of a railroad in Indiana in alleged violation of complainant's exclusive right to build and maintain a railroad along the route in question. The suit was founded upon the alleged exclusive nature of complainant's charter, which allowed it to oust the defendant company from its right of way. In denying the jurisdiction of the Michigan court the Supreme Court laid stress upon the proposition

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