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

• Decision Date: 16 December 1915
• Docket Number: 2 Div. 600
• Citation: 195 Ala. 124,71 So. 118
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO.

71 So. 118

195 Ala. 124

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

2 Div. 600

Supreme Court of Alabama

December 16, 1915

On Application for Rehearing, February 15, 1916

On Application for Rehearing.

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Action to condemn an easement for telegraph line by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. From a judgment condemning the property assessing the damages at $1, the defendant appeals. Reversed and remanded, and application for rehearing denied.

Anderson C.J., and McClellan and Somerville, JJ., dissenting.

H.L Stone, of Louisville, Ky., Mallory & Mallory, of Selma, and George W. Jones, J.M. Foster, and S.L. Field, all of Montgomery, for appellant.

Albert T. Benedict, of New York City, Forney Johnston, of Birmingham, and Rushton, Williams & Crenshaw, of Montgomery, for appellee.

GARDNER J.

By this proceeding the appellee seeks the condemnation of that portion of the right of way of appellant on its South Alabama Division from Selma to Flomaton; on its Myrtlewood branch from Selma to Myrtlewood, and on its Camden branch from Nadawah to Camden, which is already occupied by petitioner's poles and wires for use as a telegraph line. Upon the first hearing the probate court of Dallas county denied the application, and appeal was taken to the circuit court in that county, where the petition was likewise denied, and on appeal to this court the cause was reversed. W.U. Tel. Co. v. L. & N. Co., 184 Ala. 673, 674, 62 So. 797. The second trial resulted in a judgment of condemnation and an assessment of damages of $1 by the jury. From this judgment this appeal is prosecuted.

Upon the former appeal in this case no opinion was written, but the cause was determined upon the opinion of this court, rendered at the same term, in the case of W.U. Tel. Co. v. S. & N. Ala. R.R. Co., 184 Ala. 66, 62 So. 788, as the result of that case was conclusive as to this, the question presented being identical; and, for the purpose of the present appeal the opinion above referred to may be taken and considered as the opinion of this court on the former appeal in this case, and for convenience it will be referred to as the "former opinion in this case." Counsel for appellant earnestly urge a reconsideration by this court of said former opinion, and much of their argument is devoted to an attack upon said holding.

Out of a desire that exact justice might be done as nearly as possible in the administration of the law by the court of last resort, where the rights of parties are to be finally adjudicated, the Legislature many years ago enacted the following, which is now section 5965 of the Code of 1907:

"The Supreme Court, in deciding each case, when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion at that time, is law, without any regard to such former ruling on the law by it; but the right of third persons, acquired on the faith of the former ruling, shall not be defeated or interfered with by or on account of any subsequent ruling."

However great, therefore, may be the desire of courts for stability of decisions, it yet becomes the duty of this court, in cases of this character, in conformity with the above-quoted statute, to review and reconsider its former decision, and, if convinced that the ruling was erroneous, to disregard and overrule the same and be governed by what, in the opinion of the court, at this time, is the law.

It was held on the former appeal that the amendatory act of 1903 (Laws 1903, p. 374), which is codified in part as section 3867 of the Code of 1907, worked no material change in the law as respects the question here under consideration, and that the same was but a succinct statement of the law as it existed at the time of the passage of the act. To use the language of the opinion:

"In other words, section 3867 of the Code is but a codification of previous decisions of this court, construing what is now section 3860 of the Code of 1907, and its incorporation into our Code has made no material change in our laws on the subject of Eminent Domain."

After mature consideration this court, as presently constituted, has reached the conclusion that it was in error on the former appeal of this case, and that, in fact, the above-cited section of the Code has worked a material change in our law so far as respects the rights of this appellee.

It may be said in the outset that the decisions of other courts can be of little service to us in the consideration of this case, for the reason that the determination of this cause rests upon a construction of our own statutes, and there is a lack of similarity as to verbiage and history with those of other states. Nor do we deem an elaborate discussion necessary on this appeal, but will attempt, in a brief way, to state the reasons which impel us to the conclusions we have here reached.

Section 3867 of the Code of 1907 reads as follows:

"If the property sought to be condemned, or any portion thereof, or interest therein, has already been subjected or devoted to a public use, such land or portion thereof, or interest therein, shall not be taken for another and different character of public use unless an actual necessity for the specific land or portion thereof or interest therein shall be alleged and proven, and unless it be alleged and proven that such other and different character of public use will not materially interfere with the public use to which such property is already subjected or devoted."

This section represents the codification of the last sentence in section 3 of the act approved October 1, 1903, amending several sections of the Code of 1896, concerning the right of eminent domain. At the time of the passage of said amendatory act there were in the Code of 1896 sections 1244 and 1246, which read, respectively, as follows:

"Any telegraph company, incorporated under the laws of this or any other state, shall have the right to construct, maintain and operate lines of telegraph along any of the railroads or other public highways in this state; but such lines of telegraph shall be so constructed and maintained as not to obstruct or hinder the usual travel on such railroad or other highway. ***

"Such telegraph company shall be entitled to the right of way over the lands, franchises and easements of other persons and corporations, and the right to erect poles, and to establish offices, upon making just compensation as now provided by law."

These sections were, respectively, sections 1652 and 1654 of the Code of 1886.

Much stress is laid in the former opinion in this case upon the decision in M. & O.R.R. Co. v. Postal Tel. Co., 120 Ala. 21, 24 So. 408. The opinion in that case cites the statutes, the above-mentioned sections of the Code of 1886, and states that:

"The petition makes a very clear case for the application of the rights conferred by statute for the condemnation of this right of way."

The rights conferred by the statute were, of course, expressly defined in said sections 1652 and 1654 of the Code of 1886, which, as previously stated, were made sections 1244 and 1246 of the Code of 1896.

It is to be noted that counsel for appellant in The Postal Telegraph Case contended that no reason or necessity was shown for taking the right of way, and cited the cases of M. & O.R.R. Co. v. A.M.R.R. Co., 87 Ala. 501, 6 So. 404, and A. & C.R.R. Co. v. Jacksonville, etc., Ry. Co., 82 Ala. 297, 2 So. 710. In answer to this insistence and argument of counsel the court, after stating that the petitioner had made out a case for the application of the rights conferred by statute, laid the above-cited cases out of view by merely stating that "these authorities are not in point." The court so stated, in that case, for the simple reason that the right rested upon a clear declaration of the statute, and the decisions of the court involving the condemnation of the right of way of one railroad by another were therefore without application. Sections 1244 and 1246 of the Code of 1896 were not brought forward into the Code of 1907, and they were therefore repealed. The statutes giving to telegraph companies authority to condemn the right of way of a railroad, while in full force and effect and relied upon by the court at the time of the decision of the Postal Telegraph Case, supra, were not in existence at the time of the trial of this cause. It therefore appears that the decision of that case can have no material bearing upon the question now under consideration, and we think it was accorded too much weight on the former appeal.

In the former opinion, it was said:

"Section 2490 of the Code of 1896, which provided that 'the right of way is granted to any person or corporation having the right to construct telegraph or telephone lines within this state to construct them along the margin of public highways,' was brought forward into the Code of 1907 as section 5817, to which we have above referred, and that section, read in connection with section 242 of our Constitution, which we have also set out in full, means exactly what was meant by said omitted section 1244 of the Code of 1896."

Section 242 of the present Constitution provides that all railroads and canals not constructed and used exclusively for private purposes shall be public highways; and section 5817 of the present Code provides that:

"The right of way is granted to any person or corporation having the right to construct telegraph or telephone lines within this state to construct them along the margin of public highways."

This section is found in the chapter of the Code devoted to public roads, and was, as previously shown, ...