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

• Decision Date: 02 April 1918
• Docket Number: 2952.
• Citation: Louisville & N.R. Co. v. Western Union Telegraph Co., 249 F. 385 (6th Cir. 1918)
• Parties: LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Sixth Circuit

249 F. 385

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

No. 2952.

United States Court of Appeals, Sixth Circuit.

April 2, 1918

[Copyrighted Material Omitted]

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

A. P Humphrey and A. E. Richards, both of Louisville, Ky. (Rush Taggart and Albert T. Benedict, both of New York City, and Richards & Harris and Humphrey, Middleton & Humphrey, all of Louisville, Ky., of counsel), for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and KILLITS, District judge.

DENISON Circuit Judge.

The facts which led up to the present controversy are sufficiently detailed in our opinion in Louisville, etc., R.R. v. Western Union Co., 207 F. 1, 124 C.C.A. 573. Following out the theory upon which the telegraph company was there held entitled to a restraining order, it instituted, in the court below, a condemnation proceeding against the railroad company, for the purpose of acquiring the right to maintain its line in the position it was already occupying upon and along the railway grounds. The line along the right of way thus sought to be condemned, and lying in Kentucky, was about 1,000 miles long. There having been a preliminary determination by the court that the necessary precedent conditions existed, there was a trial before a jury as to the amount of damages, which resulted in a directed verdict for $5,000. Treating the whole proceeding as a trial at common law, the railroad company brings this writ of error. The assignments are ample to raise every existing question.

The disposition of many of the questions presented depends upon the construction and interpretation of the Kentucky statute (Acts 1898, c. 49 (Ky. St. Sec. 4679c)), the pertinent parts of which we reproduce in the margin. ^[1] In that construction-- so far as concerns most of the questions--we have no help from any decisions of the Kentucky Court of Appeals. The statute has been before the Kentucky court of last resort only twice, and then not upon matters of general construction. We therefore seek to ascertain the meaning, according to what seem to us the necessary inferences from the language used and from common knowledge of the situation involved, and from that viewpoint consider other decisions as far as they seem pertinent

1. This statute gives the right of eminent domain. A necessity for taking ordinarily underlies the exercise of such right, and statutes sometimes direct how that necessity shall be determined. See Lewis on Eminent Domain (3d Ed.) Secs. 595-600. This statute contains no such direction, nor does it expressly require the judicial determination of any such general condition precedent. Clearly, however, there might be circumstances which would make the exercise of the right so unreasonable and arbitrary that we could hardly suppose the Legislature intended to permit it; and section 7 expressly contemplates that only so much shall be taken as is necessary. We think it safe to assume that some measure or degree of necessity must be shown or be presumed to exist before the right of condemnation matures. The telegraph company does not possess any fraction of the state's legislative power, and does not have power itself to declare a necessity, because a legislative body may do so. See Sears v. Akron (March 4, 1918) 246 U.S. 242, 38 Sup.Ct. 245, 62 L.Ed. . . . .

2. Embodied in the first section, and so perhaps to be considered as a condition of the grant, are these words (selecting only those now important):

'Provided, that the posts, arms, insulators, and other fixtures of such telegraph lines be erected and maintained in the usual manner of constructing, operating and maintaining telegraph lines on or along and upon the right of way of railroads * * * and in such manner as not to interfere with the ordinary use or the ordinary travel and traffic on such * * * railroads.'

The telegraph line must be erected, operated, and maintained in the usual manner, and must not interfere with the ordinary use of, or traffic on, the railroad. We cannot regard this proviso as intending to formulate a hard and fast condition precedent which might prevent any condemnation, and this for three reasons: The first is that in the ordinary and typical case which the Legislature must have had in mind no such broad issue could arise. In almost any supposable situation (save in exceptional spots) a telegraph line could always be constructed and maintained in some suitable place along the railroad right of way, without constituting such an interference with the use of the property for railroad purposes as the Legislature could reasonably consider sufficient to prevent condemning at all. The second reason is that the provision as to maintenance cannot be a condition precedent to condemnation, and yet it is put precisely on a par with the condition as to construction, 'be erected and maintained,' and hence the provision as to the erection cannot be a general condition precedent. The third is that the language is not conditional in form. It is not 'provided that the * * * lines' can be erected, etc.; it is an affirmative requirement that, if built, they 'be erected and maintained,' etc.

In our judgment the rare instances-- if there are any-- where interference with railroad use will be so inevitable, so extensive and so serious as to forbid condemnation at all only present a phase of 'necessity'; and this proviso is intended to describe and characterize the nature of the right and easement which are to be condemned. The right to erect the poles and wires is given, but they must be so put up at the beginning, and always so maintained, as not to constitute the forbidden interference with ordinary use. The provision expresses, not a condition precedent, but a condition constant-- a continuing limitation.

3. It is no part of the condition or limitation that the telegraph line shall not interfere at all with railroad uses and purposes; such a thought would be contrary to common knowledge and observation. No telegraph lines can be erected and maintained on a railroad right of way without interfering in some measure or degree with some of the uses to which the railroad may rightfully wish to put the occupied property. ^[2] To say that any such incomplete and partial interference was contemplated by the proviso as a condition or limitation precedent would be to defeat the whole object of the statute, by providing that the condemnation and use should not occur except under conditions that never exist. Nor does the literalness of the language require any such sweeping view. It speaks of interference with 'ordinary' use or traffic; it makes no reference to the supplementary uses which are rightful and sometimes necessary

In this connection, it must be observed that section 4, with reference to the oath of the jury, and section 5, regulating the evidence, expressly provide that the railroad shall have, not only the value of the land to be taken and occupied, but such damages as 'will accrue to the defendant in the diminution of the value of the remainder of its right of way for railroad * * *purposes." It is plainly inconsistent with this damage-defining provision to suppose that there can be no condemnation unless it has first been determined that there will be no impairment of the use of the remainder of the property for railroad purposes. We think the conclusion inevitable that the statute, taking its various parts together, has reference to two kinds or degrees of interference with such use of the property, and that only when the interference is so inevitable and so extreme as to seriously hamper ordinary use and traffic on the railroad is it intended that the condemnation proceedings should be dismissed, in whole or in part, for that reason.

It is well recognized that this 'interference' may be insufficient to forbid condemnation and yet sufficient to justify damages. In Louisville Co. v. Western Union Co., 184 Ind. 531, 534, 111 N.E. 802, 803, Ann. Cas. 1917C, 628, the Supreme Court of Indiana considered . . .

'when such interference passes the stage where it may be compensated in damages and becomes so substantial and material as to preclude the right of * * * appropriation.'

In applying a generally similar statute, ^[3] the Supreme Court of Tennessee, in Western Union Co. v. Railroad Co., 133 Tenn. 69, 714, 182 S.W. 254, 260, said:

'We deem the true rule to be that property already dedicated to a public use is in this respect on the same plane as other property, provided there does not exist a condition that would prevent condemnation-- an interference with the first public use by the second so material as to 'obstruct' or seriously and extraordinarily impair the use for ordinary railway purposes, including telegraphic communication by means of the railway's own line of wires.

'If the interference goes to the extent of so obstructing the earlier use, the power to condemn is lacking; but the theory underlying our statute is that when the interference does not go that far, the inconvenience and impairment may be compensated for in damages and the taking for the second use permitted.'

4. The damages to be recovered are for the land actually taken and occupied, and for the diminution of the value of the remainder. In the ordinary sense of most condemnations, no land is here 'actually taken and occupied'; but the language is adopted from the familiar situation where it is more accurate. The total area upon which the poles and guy wire posts stand is negligible-- perhaps two acres for the thousand miles-- and the strip of land overhung by the cross-arms and wires is not appropriated in any exclusive way. 'Taking' doubtless there is of this...