Mobile & Ohio Railroad Co. v. Postal Telegraph-Cable Co.

• Decision Date: 15 March 1899
• Citation: 26 So. 370,76 Miss. 731
• Parties: MOBILE & OHIO RAILROAD CO. v. POSTAL TELEGRAPH-CABLE CO
• Court: Mississippi Supreme Court

26 So. 370

76 Miss. 731

MOBILE & OHIO RAILROAD CO. v. POSTAL TELEGRAPH-CABLE CO

Supreme Court of Mississippi

March 15, 1899

March 1899

FROM the circuit court, second district, of Chickasaw county, HON E. O. SYKES, Judge.

This was a proceeding under the eminent domain chapter, code 1892 by the Postal Telegraph Cable Co., plaintiff, against the Mobile & Ohio Railroad Co., defendant, for the condemnation of the right of way of defendant in Mississippi, extending from the Alabama state line on the south to the Tennessee state line on the north, for the purposes of construction maintenance and operation by the plaintiff of a line of electric telegraph over the lands constituting defendant's right of way, the said right of way being limited, except for some special purposes, to a strip of the width of one hundred feet throughout defendant's whole line in Mississippi. In the special court, provided for by the code chapter, the jury returned a verdict of condemnation as prayed for, awarding defendant, by way of damages, a sum of money per mile amounting, in the aggregate, to the sum of $ 3.00, and from the judgment entered thereon the defendant appealed to the circuit court and there filed the following special pleas: First, that its right of way was one hundred feet in width through the state, and that it had built and was operating thereon a single track railroad; that such right of way was secured and improved by it at great expense for the purpose of maintaining its track thereon, and that all of it was necessary to the exercise by it of its chartered rights, whereas the condemnation of any part of it by the telegraph company was not necessary for its purposes because there were other lands in the immediate vicinity, easily accessible, to be acquired by purchase or condemnation, for its use. Second. That in order to conduct its business as a railroad, it was necessary to have upon its right of way a telegraph line, and for that reason it had contracted with the Western Union Telegraph Company to furnish it the necessary telegraphic facilities, giving in consideration thereof certain exclusive telegraphic rights over said right of way, and that the entire one hundred feet was necessary for its purposes as a railroad company and those of the Western Union Telegraph Company, while the condemnation of any part of it was not necessary for petitioner's purposes, there being land immediately adjoining, easily susceptible of being acquired by purchase or condemnation for petitioner's purposes. Third. That as to that part of said right of way from Tupelo to Meridian, and from Starkville and Columbus to the defendants' main line, the petitioner already had a line of telegraph in operation on a right of way acquired by purchase or condemnation, and therefore had exhausted its power of condemnation for "new lines" between those points. Fourth. If the condemnation should be decreed, it claimed compensation for its property that would be taken and damaged at the rate of $ 200 per mile and $ 50 additional per annum, which damage the defendant would sustain. To all of these pleas the plaintiff, the telegraph company, demurred, admitting the allegations of the pleas, but denying that defendant was entitled to any but nominal damages. The court sustained the demurrer as to the first three pleas, but overruled it as to the fourth. The cause was then tried de novo in the circuit court, and resulted in a verdict of condemnation, whereby damages were assessed at $ 310.00, or one dollar per mile, instead of $ 3.00, as in the special court. From the judgment entered upon this verdict defendant appealed to the supreme court.

Affirmed.

Bristow & Sykes, for the appellant.

The plaintiff was not entitled to a judgment of condemation as a matter of course. The question is one for the determination of the courts and depends upon proof of a necessity for taking the particular property. That it is more convenient for the plaintiff to run its line along the defendant's right of way and thus appropriate the fruits of defendant's labor and money does not meet the requirement of the law. Lewis on Em. Dom., sec. 393.

The property and franchises of one corporation cannot be taken from it and given to another under color of legislative authority without doing violence to rights secured by the fundamental law. Scott and Jar. on Tel., sec. 9; Lewis on Em. Dom., sec. 267; Power Co. v. Boston, etc., R. R. Co., 23 Pick., 393; Bridge Co. v. Dix, 6 How. ( U.S.), 537; Dartmouth College v. Woodward, 4 Wheat, 658; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U.S. 1; Railroad Co. v. Rich, S.C. 228; 1 Woods Railway Law, sec. 170; Telegraph Co. v. Rich, 19 Kan. 517; Prather v. Tel. Co., 89 Ind., 501; Railroad Co. v. Tel. Co., 21 Hun (N. Y.), 261.

By a contract between the defendant, Mobile & Ohio Railroad, and the Western Union Telegraph Company, in consideration of the most extended, perfect and comprehensive telegraphic facilities guaranteed to be furnished by the telegraph company to the railroad company, the latter company, with a view of securing a more perfect telegraph service than it could possibly do by constructing, maintaining and operating an individual system of its own, and in the interest of the safety and the convenience of the commercial and traveling public, granted and assigned to said telegraph company the entire and exclusive right of way, franchise, land, bridges and structures in the State of Mississippi for the purpose of the construction, maintenance and operation of the line or lines of telegraph thereon, with divers other exclusive rights and privileges, not necessary to be referred to in this case. Assuming that telegraph facilities are now not only incidental, but necessary, for the proper carrying on of the railroad business under its charter, and that the railroad corporation may contract for such service with an independent telegraph company--propositions which we assume will not be disputed--the question here recurs, is the contract referred to, and set out in the second plea, legal, and, under the contract, and the circumstances as shown in the evidence, is the defendant railroad company legally bound by that contract, and has the telegraph company the legal right thereunder, and, under the facts of the case, to claim the entire and exclusive right of constructing, maintaining and operating a line of telegraph on and over the right of way of the said defendant railroad company during the existence of that contract? And we submit the contract is a legal one, and that, under that contract and under the circumstances set up, the railroad company is bound by it and the telegraph company has such exclusive right.

Certainly, if a state can make exclusive grants of this kind, even subject to the power of eminent domain, a private owner of property, in the absence of constitutional prohibition, may do the same by private contract. In fact, condemnation under the right of eminent domain is nothing more nor less than a private sale of the owner, which (for certain public considerations) he is compelled to make, and it is well established that whatever property a railroad company is authorized to hold it may lawfully convey. McAlister v. Plant, 54 Miss. 119.

"Exclusive franchises may be granted to individuals as well as to corporations, and the incorporated companies have the right to purchase such exclusive rights from individuals and to succeed to all the rights and privileges which the franchises confer." "The legislature has undoubtedly the right to grant such exclusive franchises." California State Tel. Co. v. Alta Tel. Co., 22 Cal. 398; Telegraph Case, 96 U.S. 1; 25 Am. & Eng. Enc. L., 758. Contracts of this character are upheld in Illinois. See Telegraph Co. v. Railroad Co., 86 Ill. 246, s.c., 29 Am. Rep., 28.

And exclusive legislation by the states in such cases has been approved in the courts of many of the states. Boston, etc., Railroad Co. v. Salem, etc., Railroad Co., 2 Gray, 1; Bridge Co. v. Bridge Co., 11 Peters, 420, 540; Bridge Co. v. Railroad Co., 6 Paige, 554; Canal Co. v. Railroad Co., 8 Paige, 323; vidi also 25 Am. & Eng. Enc. L., 758; 2 Beach Priv. Corp., sec. 405b; Western Union Tel. Co. v. Atlantic & Pacific Tel. Co.; 7 Bissell C. C. Rep., 367; Express Cases, 117 U.S. 1.

As to the objection that such contracts are in "restraint of trade, " tending to create monopoly, " etc., we need say but a word. A very large latitude has been allowed by the authorities in making such contracts, a familiar instance being the sale of a business, with agreement by the vendor not to engage in the same business within reasonable limits of time and place, etc., and generally all contracts of this character not so unreasonable as to be injurious to the public have been upheld by the courts. Chappell v. Brockaway, 21 Wend., 157; Richardson v. Wellish, 2 Bing., 229; Palmer v. Stebbins, 3 Peck, 193; Anderson v. Faulconer, 30 Miss. 145; Klein v. Buck, 73 Miss. 133.

It is a matter of fact that the petitioner has already a continuous line of telegraph constructed under its charter upon right of way acquired by contract or by exercise of right of eminent domain from Tupelo, in Lee county, to Meridian, in Lauderdale county, and laterally east and west to Columbus in Lowndes county, and to Starkville in Ocktibbeha county, all stations on the railway line of the defendant. Under these circumstances we submit the petitioner has exhausted its powers of condemnation under the right of eminent domain, and between the stations named can now change the location of their lines only by acquiring a right of way by private contract. Lusby v. R. R. Co., 73 Miss. 360; Brigham v. R. R. Co., 1 Allen, 316; Morehead v R. R. Co., 7 Ohio, 340; Taylor on Corp., secs....