Louisville Nashville Railroad Company v. Western Union Telegraph Company

• Decision Date: 19 April 1915
• Docket Number: No. 183,183
• Citation: 59 L.Ed. 956,237 U.S. 300,35 S.Ct. 598
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Plff. in Err., v. WESTERN UNION TELEGRAPH COMPANY
• Court: U.S. Supreme Court

237 U.S. 300

35 S.Ct. 598

59 L.Ed. 956

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Plff. in Err.,

v WESTERN UNION TELEGRAPH COMPANY.

No. 183.

Argued March 8 and 9, 1915.

Decided April 19, 1915.

Messrs. Victor Leovy, John G. Johnson, George Denegre, and Henry L. Stone for plaintiff in error.

Messrs. Rush Taggart, George H. Fearons, and Charles P. Fenner for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a suit brought by the telegraph company, originally in a state court, to acquire 'the right of use for a telegraph line over the right of way, bridges, and property' of the railroad company, subject to the railroad's dominant right, by 'judgment expropriation.' By an amendment filed on May 21, 1912, the telegraph company alleged that it had accepted the provisions of the act of Congress of July 24, 1866 (chap. 230, 14 Stat. at L. 221, see Rev. Stat. §§ 5263 et seq. Comp. Stat. 1913, § 10,072), but did not disclose the purpose of the allegation. The case was removed to the district court of the United States on June 17, 1912. There was a trial, a condemnation of the right to the plaintiff upon payment of a sum fixed by verdict, and a judgment, subject to exceptions, which was affirmed without an opinion by the circuit court of appeals. This statement is sufficient, or nearly so, to show that there is a question as to the jurisdiction of this court.

If the jurisdiction below was dependent entirely upon the opposite parties being citizens of different states,—the telegraph company of New York, the railroad of Kentucky,—this writ of error must be dismissed under § 128 of the Judicial Code. Act of March 3, 1911, chap. 231, 36 Stat. at L. 1087, Comp. Stat. 1913, §§ 968, 1120. The only basis for any other ground of jurisdiction is the unexplained averment of acceptance of the act of 1866. The question is whether that averment discloses such a ground.

The jurisdiction to be exercised was to expropriate by judgment. But it was well known to the telegraph company from a series of decisions to which it was party that the act of 1866 was merely permissive, and gave no power to exercise eminent domain. The latest decision, repeating many earlier ones, was rendered a month and a half before this amendment was filed. Western U. Teleg. Co. v. Richmond, 224 U. S. 160, 56 L. ed. 710, 32 Sup. Ct. Rep. 449. There is not even color of jurisdiction on the ground that the taking was by force of the act of 1866. Western U. Teleg. Co. v. Ann. Arbor R. Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867.

The only other that occurs to us is that, under the statutes of Louisiana as construed, the telegraph company could not maintain this suit if, by the law creating it,...