Mobile & O.R. Co. v. Postal Tel. Cable Co.

• Decision Date: 27 April 1898
• Citation: 46 S.W. 571,101 Tenn. 62
• Parties: MOBILE & O. R. CO. v. POSTAL TEL. CABLE CO. (two cases).
• Court: Tennessee Supreme Court

46 S.W. 571

101 Tenn. 62

MOBILE & O. R. CO. v. POSTAL TEL. CABLE CO. (two cases).

Supreme Court of Tennessee.

April 27, 1898

Appeal from circuit court, Gibson county; John R. Bond, Judge.

Appeal from circuit court, Madison county; Levi S. Woods, Judge.

Two separate actions by the Postal Telegraph Company against the Mobile & Ohio Railroad Company. Judgment was rendered for plaintiff in each action, from which defendant appeals. Affirmed.

Hays & Biggs, J. R. McIntosh, and Deason & Rankin, for appellant.

R. P Raines, McCorry & Bond, and Caruthers & Mallory, for appellee.

WILKES J.

These two cases involve in the main the same questions, and are heard together by request of counsel. The actions were brought in the circuit courts of the respective counties of Gibson and Madison by the telegraph company against the railroad company to acquire rights of way for telegraph purposes along, upon, and over the right of way of the railroad company. The petitions in both cases were demurred to, and demurrer overruled, and they proceeded to hearing and disposition on the merits, and for the assessments of damages; the Madison county case being heard on appeal from the report of the jury of inquiry, before the judge without a jury, and the Gibson county case by the judge and a jury. In the Madison county case the trial judge held that nothing but nominal damages could be had; and in the Gibson county case the learned judge charged the jury that they could give as damages nothing except the value of the land occupied as post holes by the telegraph company. The cases are before us on appeal by the railroad company; but the real party in interest is the Western Union Telegraph Company, a competing line, with which the railroad has a contract for an exclusive line over its right of way, and which has the right, under its contract, to use the name of the railroad company in any suit to resist the attempt of any competing line to construct any other line upon its right of way. This contract appears to be based upon a valuable consideration, of services to be rendered.

The first question raised is that the telegraph company has no power to have condemned a right of way over land already condemned for railroad purposes, in the absence of express legislative authority. 3 Elliott, R. R. § 964. It is conceded that such right is conferred by chapter 66 of the Acts of 1885, but it is insisted this act is invalid for constitutional reasons, and that there is no other law conferring such right. The constitution provides (article 2 § 18) that "no bill shall become a law until it shall have been read and passed on three different days in each house and shall have received on its final passage in each house the assent of a majority of all the members to which that house shall be entitled under this constitution, and shall have been signed by the respective speakers in open session, the fact of such signing to be noted on the journal." There is no entry on the house journal showing that the speaker of the house ever signed this bill. There is no other irregularity or defect alleged against its passage. The journals of each house show that it has passed on three separate readings on three different days in each; and the journal of the senate shows that it was signed by the speaker of the senate, and the fact noted on the senate journal, and it was then transmitted to the house for the signature of the speaker of the house, but there is no entry upon the journal of the house that it was signed by the speaker of the house. It was approved by the governor upon the next day thereafter. It is said this defect vitiates the whole act that the provision of the constitution is mandatory, and, unless complied with, the act does not become a law, or have any validity. This presents a question of grave difficulty and doubt, but, if we concede this act to be invalid, still, in our opinion, chapter 135 of the Acts of 1885 (Shannon's Code, §§ 1868, 1871) does confer the right to condemn and take the property, privileges, rights, or easements of private corporations for public purposes and internal improvement; and the construction of a telegraph line is a species of internal improvement, and expressly so regarded and treated in other portions of the act, and as embraced by it. Shannon's Code,§§ 1869-1871. It is said that this act of 1885 (chapter 135) has reference to the remedy or mode of procedure to condemn property, and does not confer any right, and that the right was intended to be conferred by chapter 66. While the act does prescribe the manner of proceeding, it also clearly gives the right to take the privileges, rights, or easements of private corporations in the same manner and to the same extent as in case of the property of individuals. Shannon's Code, §§ 1868-1871.

This being true, the next question that arises is as to the measure of damages, and the mode of ascertaining the same. In the Madison county case it was held, as before stated, that the railroad company was entitled to only nominal damages. In the Gibson county case the court charged the jury that the measure of damages was the value of the land taken, and occupied as post holes, but refused to charge that the proper measure of damages was the fair cash market value of said right of way or easement taken, estimated as if the railroad company was willing to sell, and the telegraph company desired to buy, that particular right of way or easement, and to give the fair cash market value of the right of way or easement taken, without deduction. The contentions of the parties are thus shown to be that complainant insists that the damages are purely nominal, while the defendant insists according to the request, that they are the fair cash market value of the right acquired or easement secured, as if it were a matter of contract between the parties. In its petition, the telegraph company disclaims any right or purpose to obstruct, impede, or interfere with the railroad in its use of its right of way for railroad...