Northern Pac. Ry. Co. v. North American Telegraph Co.

Citation230 F. 347
Decision Date15 December 1915
Docket Number4347.
PartiesNORTHERN PAC. RY. CO. v. NORTH AMERICAN TELEGRAPH CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

The Northern Pacific Railway Company complains of the rejection of all evidence of the value of the right which the telegraph company is seeking to take from it by condemnation to use one side of the railway company's right of way for a line of telegraph, and of the exclusion of the value of the right to such use as an element of damages from the consideration of the jury, which assessed the just compensation for the taking or damage to such right. The railway company had a right of way for railroad and telegraph purposes from White Bear which is about 10 miles from St. Paul, to Duluth, and from White Bear to Stillwater. About 150 miles of this right of way is on the main line of the railway company from St. Paul to Duluth and is of great value. On one side of the railroad upon this right of way the railway company had constructed and was using its telegraph line in the operation of its railroad and the conduct of its business. It did not need to use the other side of its right of way for its own telegraph purposes, and about the year 1900 it leased to the telegraph company for 10 years for specified rentals the right to this surplus use of its right of way for the telegraph line of the telegraph company, and that company exercised that right under this lease and paid the rentals there fixed voluntarily during the 10 years. At the end of that term it instituted this proceeding permanently to condemn and take from the railway company this right which it had theretofore leased. There was a jury trial of the question of the amount which the telegraph company should be required to pay as just compensation for the taking, at which the court excluded from the jury any consideration, as an element of the railway company's damages, of the value of this right to the use of its right of way for this telegraph line, and restricted the recovery of damages to those arising from the interference with the mere operation of the railroad and with the physical condition of the land subject to its right of way.

Emerson Hadley, of St. Paul, Minn. (C. W. Bunn, of St. Paul, Minn on the brief), for plaintiff in error.

Edward T. Young, of St. Paul, Minn. (O'Brien, Young & Stone, of St. Paul, Minn., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

SANBORN Circuit Judge (after stating the facts as above).

It is indispensable to a fair discussion and just decision of this case that the real question at issue be clearly perceived and kept constantly in mind. That question is: May a stranger corporation which has no right, property or interest in a valuable right to the surplus use of its right of way for telegraph and railroad purposes which a railway company has acquired and owns, take that valuable right to such surplus use from it by condemnation without making compensation therefor? That this is the actual question at issue will appear from a reference to a few indisputable rules of law and from a brief review of the course of the trial below.

The proceedings in this case must be governed by the declaration of section 13 of article 1 of the Constitution of Minnesota that 'private property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured,' and the provisions of section 6246, General Statutes of Minnesota 1913, that 'any public service corporation shall have the right to obtain by condemnation, under the right of eminent domain, any land, or any right over, through, or across the same, or any easement therein, necessary for the convenient prosecution of its enterprise; and any telegraph or telephone company may in the same manner acquire the right to construct its lines over, along, and upon the right of way and lands of any railway company upon making just compensation therefor to such company; but such right shall at all times be subject to the right of the railway company to use its right of way and lands for railway purposes, and said telegraph or telephone lines shall be so located, constructed, and maintained as not to interfere with the usual operation of such railway.'

It will be noticed that, while this section limits the extent of the right of the surplus use of the railway company's right of way which the telegraph company may take by condemnation, so that it may not interfere with the operation of the railroad, the section does not undertake to appraise or limit the value of this right which may be so taken. Much less does it indicate that such right is without value, or that its taking will cause no damage to the railway company, but, on the other hand, it clearly shows that the Legislature must have been of the opinion that this right was of value and that its taking or destruction might cause damage, for the section permits its taking only 'upon making just compensation therefor' to the railway company.

A railway company, which has become the owner of a railroad which it is operating and of a right of way appurtenant thereto, has the exclusive right to the use of that right of way for telegraph purposes as well as for railroad purposes. If after the application of so much of the use thereof as the maintenance of its own railroad and telegraph requires there remains a surplus use of that right of way either for telegraph purposes or for railroad purposes, it may lease or permit that use, or any part of it, for a valuable consideration for any purpose which does not interfere with its operation of its own railroad and telegraph and its discharge of its duties to the public so to operate them. This right of a railroad company to lease to permit the surplus use of its right of way, or of its property, is its private property and it is often very valuable property. Union Pac. Ry. Co. v. Chicago, R.I. & P. Ry. Co., 51 F. 309, 315, 317, 321, 2 C.C.A. 174; Union Pac. Ry. Co. v. Chicago, etc., Ry. Co., 163 U.S. 564, 585, 16 Sup.Ct. 1173, 41 L.Ed. 265; American Telephone & Telegraph Co. v. St. Louis, I.M. & Southern Ry. Co., 202 Mo. 656, 101 S.W. 576, 585, 586; Hartford Fire Ins. Co. v. Chicago, etc., Ry. Co., 175 U.S. 91, 93, 20 Sup.Ct. 33, 44 L.Ed. 84; James Quirk Milling Co. v. Minneapolis & St. Louis R.R. Co., 98 Minn. 22, 26, 107 N.W. 742, 116 Am.St.Rep. 336; Western Union Telegraph Co. v. Penn. R.R. Co., 195 U.S. 540, 570, 25 Sup.Ct. 133, 141 (49 L.Ed. 312, 1 Ann.Cas. 517). In the case last cited the Supreme Court said that the constitutional protection of private property from taking for public use without just compensation applied as well to private property of a railroad company devoted to a public use, that:

'There is no difference whatever in principle arising from the difference in the uses. A railroad right of way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. U.S. Trust Co., 172 U.S. 171, 183 (19 Sup.Ct. 128, 133 (43 L.Ed. 407)). We there said that if a railroad's right of way was an easement it was 'one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it corporeal, not incorporeal, property.' * * * A railroad's right of way has, therefore, the substantiality of the fee, and it is private property even to the public in all else but an interest and benefit in its uses. It cannot be invaded without guilt of trespass. It cannot be appropriated in whole or part except upon the payment of compensation. In other words, it is entitled to the protection of the Constitution, and in the precise manner in which protection is given.'

In Union Pacific Ry. Co. v. Chicago, R.I. & P. Ry. Co., 51 F. 309, 315, 2 C.C.A. 174, the Union Pacific Company made a contract of lease for 999 years of the surplus use of some of its railroad tracks extending over many miles and some of its railroad facilities at Omaha at a rental of $45,000 per annum, and this court and the Supreme Court sustained that contract. In Mason City & Ft. Dodge R. Co. v. Union Pacific R.R. Co. (C.C.) 124 F. 409, 412, 414, 415, the court compelled the Union Pacific Company to permit the Mason City & Ft. Dodge Railway Company to avail itself of the surplus use of some of the Union Pacific's railroad tracks and other railroad facilities at Omaha and between that city and South Omaha, but required the Ft. Dodge Company to pay a reasonable compensation for the right to that use, and its decree was affirmed in this court (Union Pacific R. Co. v. Mason City & Ft. Dodge R. Co., 128 F. 230, 64 C.C.A. 348), and in the Supreme Court (Union Pacific R. Co. v. Mason City & Ft. Dodge R. Co., 199 U.S. 160, 26 Sup.Ct. 19, 50 L.Ed. 134).

There can be no doubt, therefore, that the right of a railroad company to let or permit the surplus use of its right of way to another for telegraph purposes or for railroad purposes is its private property and that it may be valuable property.

At the trial below Mr. Clapp testified that he was and had been superintendent of telegraph for the Northern Pacific Railway Company for 2 1/2 years and that for 17 years he had been working for different telegraph and telephone companies, that he had been engaged in acquiring and leasing or permitting rights of way for telegraph and telephone lines by railway companies upon their rights of way and knew what the practice was in the matter of leasing such rights, that such leases went through his hands, that they were continually coming up for his consideration, that there were about 60 such leases covering the placing of poles and wires longitudinally on parts of the right of way of the ...

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