Nw. Tel. Exch. Co. v. Chi., M. & St. P. Ry. Co.
Decision Date | 22 May 1899 |
Citation | 76 Minn. 334,79 N.W. 315 |
Court | Minnesota Supreme Court |
Parties | NORTHWESTERN TEL. EXCH. CO. v. CHICAGO, M. & ST. P. RY. CO. |
OPINION TEXT STARTS HERE
Appeals from district court, Martin and Jackson counties; James H. Quinn, Judge.
Two proceedings in eminent domain by the Northwestern Telephone Exchange Company against the Chicago, Milwaukee & St. Paul Railway Company. Judgments for plaintiff, and defendant appeals in each case. Reversed.
1. Whether Gen. St. 1894, § 5876, which provides that no corporation or association, more than 20 per centum of the stock of which is or may be owned by any person or person not citizens of the United States, shall hereafter acquire, or shall hold or own, any real estate hereafter acquired in this state, is applicable where a corporation is attempting to exercise the right of eminent domain, is not decided, but, if it is, it is held that, as to a corporation organized under the laws of the state, it must be presumed, until the contrary appears, that a sufficient percentage of its shareholders are citizens.
2. The rule is, when applying the principles of the common law or when construing statutes, that the telephone is to be considered a telegraph, unless express statutory provisions govern the case. So telephone companies, when establishing their lines, have the right of eminent domain, under the constitution and laws, to the same extent as have telegraph companies.
3. The federal statute (Rev. St. §§ 5263, 5268, 5269) authorizing telegraph companies, upon complying with its terms, to construct and maintain their lines along and over all post roads of the United States, and (Id. § 5964), making all railroads post roads, does not confer upon a telegraph company the right to occupy the right of way of a railroad with its line without its consent, or a contract with a prior owner which is binding upon it.
4. The general rule is that land already devoted to another public use cannot be taken under general laws where the effect would be to extinguish a franchise. If, however, the taking would not materially injure the prior holder, the condemnation may be sustained.
5. The plaintiff in these proceedings is authorized, under Gen. St. 1894, § 2604, to exercise the right of eminent domain. No express authority to condemn for its use land which has already been appropriated to another public use is found in the statute, and such authority must arise, if at all, by necessary implication. There must be a reasonable and practical necessity for such a proceeding, not a necessity created by the corporation asserting the right that it may be convenienced, or a necessity arising out of a desire to unreasonably economize. Held, upon the evidence in the case at bar, that there was no reasonable or practical necessity for the condemnation of an easement for plaintiff's line over and across certain portions of defendant's right of way. H. D. Estabrook and W. E. Todd, for appellant.
D. F. Morgan, for respondent.
In separate proceedings, instituted in two counties, plaintiff sought to condemn and acquire a right to way six feet in width for the erection and maintenance of its poles and lines of wire over and across certain lands in these counties, including a portion of the territory previously acquired by grant or by condemnation by defendant railway corporation for its right of way, and in use as such. The proceedings were had under and in accordance with Gen. St. 1894, § 2604 et seq., and resulted in the appointment of commissioners, an appraisement and assessment of damages, the filing of the commissioners' report, a refusal by defendant to accept the amount of damages assessed, a deposit thereof, and an entry of judgment in each case as prayed for in the petitions. Defendant appeals from the judgments as well as from the orders appointing commissioners. A determination of one case necessarily determines the other. From the plats and maps introduced in evidence and presented on the argument, and from other records in the cases, it seems that, as a general rule, the defendant's right of way through these counties is 100 feet in width, but at places, and for reasons not fully disclosed, it is 200, and in others 300, feet wide. But, without regard to width, the defendant's main line of railway is in the center of the right of way. So it will be seen that, while the distance from the center of the track to the margin of the way on either side is 50 feet, ordinarily, there are places where it is 100 feet, and others where it is 150 feet. Where the defendant's right of way is but 100 feet wide, and therefore, as a rule, plaintiff has located its line and has acquired its strip of land adjoining on the south, just outside of defendant's way, setting its poles in the center,-that is, 3 feet from defendant's line,-so that in no manner does it interfere with such way. But at the places before mentioned, where defendant's right of way is of greater width than 100 feet, and, as a consequence, plaintiff's 6-foot strips abut thereon, the latter has acquired the right, if these proceedings are upheld, to cross defendant's right of way from point to point, and thus to bisect it on a line parallel with defendant's railway track 50 feet from the center thereof. The length of these bisecting strips of 6 feet in width, and of which plaintiff would have the use for the purpose of constructing and maintaining its poles and wires, vary, according to the plats on file, from one-fourth of a mile to one and one-fourth of a mile in length. In Martin county alone the defendant's right of way thus to be used amounts to eight miles in the aggregate. We have no means of ascertaining what it is in Jackson county. We call attention to these details because, as will be seen hereinafter, they are of importance in the disposition we make of the appeals from the judgments.
The plaintiff is a corporation organized, according to its articles, stated in a general way, for the purpose of organizing, maintaining, and operating telephone exchange systems, public and private telephones and telegraph lines, and doing a telephone and telegraph business within and without the state, incorporated under the provisions of Gen. St. 1894, c. 34, tit. 1. The petitions presented to the court below embodied the facts enumerated in section 2605. The first point made by defendant's counsel is that the petitions are insufficient, and the proofs defective, because it was not affirmatively alleged and proven that 80 per centum, at least, of the corporate stock shares were and are owned by citizens of the United States. Gen. St. 1894, § 5876. Even if we should admit that condemnation proceedings are for the purpose of acquiring land, although they are brought to secure an easement therein only, there are several reasons why the point is not well taken. A sufficient one is that when we find a corporation organized under the laws of this state, and with power to acquire land or an easement in land, it cannot be presumed that more than 20 per centum of its stockholders are aliens. The presumption with such a corporation is that a sufficient percentage of its shareholders are citizens. It was not necessary to allege or prove that they are. If the statute has any application in proceedings of this nature, the alienage of the shareholders is a matter of defense. The plaintiff, to some extent, relies upon an act of congress of July 24, 1866, found in Rev. St. §§ 5263-5268, inclusive, while defendant's counsel insist-First, that the plaintiff is not a telegraph company within the meaning of that act; and, second, if it be such a company, that the act does not authorize it to enter upon the right of way of a railway company without the consent of such company. Section 5263 of the act provides: ‘Any telegraph company now organized, or which may hereafter be organized, under the laws of the state, shall have the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, under or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads.’ And in section 5268 it is enacted that: ‘Before any telegraph company shall exercise any of the powers or privileges conferred by law such company shall file their written acceptance with the postmaster general of the restrictions and obligations required by law.’ In these days there ought to be no one to question the statement that a telephone is simply an improved telegraph. The former was originally called the speaking telegraph. The instruments used at the terminals are different, but the poles, the wires, the insulators, and the generation of the electric current are all the same. The slight technical different was exceedingly well stated by one of the witnesses, at the hearing, in the following language: ‘In sending telegraph messages, the sender writes out into words what he wishes to transmit; another party takes it, and translates it into sounds that represent letters, which are sent over the wire by breaking the electric current, which reproduces the sounds at the other end, which are retranslated by the operator at the end into words, and delivered to the customer; and in sending the message by telephone the person who desires to send a message speaks into the instrument, and, instead of breaking and interrupting the current, it is partially broken and varied by the air waves...
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