Louisville & N.R. Co. v. Postal Tel. Cable Co.

• Docket Number: 288.
• Decision Date: 15 April 1915
• Parties: LOUISVILLE & N. R. CO. ET AL. v. POSTAL TELEGRAPH-CABLE CO. POSTAL TELEGRAPH-CABLE CO. v. LOUISVILLE & N. R. CO.
• Court: Georgia Supreme Court

85 S.E. 110

143 Ga. 331

LOUISVILLE & N. R. CO. ET AL. v. POSTAL TELEGRAPH-CABLE CO.

POSTAL TELEGRAPH-CABLE CO. v. LOUISVILLE & N. R. CO.

No. 288.

Supreme Court of Georgia

April 15, 1915

Syllabus by the Court.

The Act of Congress of July 24, 1866, c. 230, § 1, 14 Stat. 221 (Rev St. § 5263 et seq. [ U.S. Comp. St. 1913, § 10072 et seq.]) giving telegraph companies the right to construct and operate their lines through, along, and over the public domain military and post roads, and navigable waters of the United States, does not withdraw from the states the right to legislate on the subject of the condemnation of railroad rights of way for telegraph companies.

The measure of damages in the condemnation of a right of way of a railroad company for the construction of a telegraph line is the value of the land taken and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company. Any rent previously paid by a telegraph company for the use of the right of way in conducting a business, entirely disconnected with and not ancillary to the railroad company in the discharge of its corporate functions and duties, is not a proper element to be considered in the estimate of damages.

The verdict is supported by the evidence, and no error of law is made to appear.

Error from Superior Court, Richmond County; Wm. F. Eve, Judge.

Suit by the Louisville & Nashville Railroad Company and others against the Postal Telegraph-Cable Company. Judgment for defendant, and plaintiffs bring error, and defendants file cross-bill of exceptions. Affirmed on main bill, and cross-bill dismissed

EVANS P.J.

The Postal Telegraph-Cable Company commenced proceedings against the Georgia Railroad & Banking Company and its lessees, the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company, to condemn a right of way for a telegraph line on the right of way of the Macon & Augusta Railroad, a branch line of the Georgia Railroad & Banking Company. The board of assessors awarded the sum of $100 as damages for the easement, and an appeal was taken by the condemnees to the superior court. Pending the appeal the railroad companies filed against the telegraph company their petition in equity to enjoin the further progress of the condemnation proceeding. The equity case and the appeal from the assessors' award were consolidated and tried together as one case. A verdict was returned in which the damages were assessed at $60. The railroad companies moved for a new trial, which was refused.

1. The court refused a written request to charge the jury as follows:

"The Congress of the United States, in pursuance of power given it by the Constitution of the United States, has declared the railroads of the country, including that branch of the Georgia Railroad which is known as the Macon & Augusta Railroad, whose right of way the Postal Telegraph-Cable Company is seeking to condemn for a telegraph line, to be post roads and as such subject to the jurisdiction of Congress. The Congress of the United States, also in pursuance of power given it by the constitution of the United States, has also prescribed the terms and conditions on which telegraph companies may construct their lines on the right of way of railroads. I charge you that the legal effect of this legislation by Congress is to withdraw the right of way of railroads from the operation of the authority of the states in the matter of the construction of telegraph lines thereon, and that the acts of the Legislature of Georgia, under which the Postal Telegraph-Cable Company is seeking to condemn a part of the right of way of the Macon & Aguusta Railroad, are, as to such proceeding, unconstitutional, null and void; and you should find a verdict for the petitioners, Louisville & Nashville Railroad company, Atlantic Coast Line Railroad Company, and the Georgia Railroad & Banking Company."

The requested instruction was properly refused. The act of Congress approved July 24, 1866 (Rev. Stat. § 5263 et seq.) giving telegraph companies the right to construct and operate their lines through, along,...