Phillips v. Postal Tel.Cable Co

Decision Date13 June 1902
CourtNorth Carolina Supreme Court
PartiesPHILLIPS v. POSTAL TEL..CABLE CO.

41 S.E. 1022
130 N.C. 513

PHILLIPS
v.
POSTAL TEL..CABLE CO.

Supreme Court of North Carolina.

June 13, 1902.


EMINENT DOMAIN—TELEGRAPH COMPANIESRIGHT OP WAY-UNLAWFUL APPROPRIATION — FAILURE TO PAY COMPENSATION — DUE PROCESS OF LAW—RAILROAD RIGHT OF WAY —USE FOR TELEGRAPH PURPOSES—DAMAGES —PERMANENT DAMAGES — JUDGMENT — EFFECT—APPEAL.

1. A judgment awarding permanent damages to a landowner for the unauthorized appropriation by a telegraph company of a right of way confers the same rights on the company as a condemnation of the way.

2. An appropriation of a right of way by a telegraph company without giving compensation therefor is in violation of Const. U. S. Amend. 14, providing that no one shall be deprived of property without due process of law, though not of Id. Amend. 5, prohibiting the taking of property without due compensation, as the latter provision only applies to the federal government.

3. Act Cong. July 24, 1866, providing that telegraph companies accepting the act which relates to the construction of telegraph lines over the United States shall have the right to construct telegraph lines over the public domain and over military and post roads of the United States, does not authorize such companies to appropriate private lands for their right of way.

4. The fact that a railroad has a right of way over lands which it does not use, and that a telegraph company whose line is not beneficial to the railroad condemns a telegraph right of way thereover in proceedings against the railroad company, does not entitle the telegraph company to use such right of way without compensating the landowner over whose land the railroad right of way extends, but it is an additional burden on the fee, entitling such landowner to compensation.

5. Under Code, § 2010. providing that, in condemnation proceedings by a telegraph company to obtain a right of way along a railroad right of way, it is sufficient to give jurisdiction if the corporation owning the easement is made a party defendant, but that only the interest of the parties before the court shall be condemned in such proceedings, the owner of the fee, who is not a party to such proceedings, is not affected by a judgment of condemnation against the railroad company.

6. The owner of land over which a telegraph right of way is appropriated without authority is not required to proceed under Code, c. 49, relative to telegraph companies, and the condemnation of rights of way by such companies, for the collection of damages therefor, but may bring action against the company, as sections 2010 and 2011 thereof only authorize the company to institute proceedings thereunder, and provide proceedings therefor, and section 2012 thereof only relates to subsequent proceedings.

7. The fact that plaintiff in an action against a telegraph company for damages for maintaining a line over his land without authority so to do has purchased the land after the original unlawful entry by the company does not defeat his right to maintain such action.

8. Permanent damages are recoverable, under the general law, against a telegraph company for the unlawful appropriation without compensation of a right of way over plaintiff's land, but not under Acts 1895, c. 224, authorizing the recovery of permanent damages for unlawfully appropriating a right of way; the latter section being expressly limited to railroads.

9. The refusal of the trial court to set aside a verdict giving damages for the unlawful appropriation of a telegraph right of way over plaintiff's lands, as being excessive, cannot be reviewed on appeal.

Montgomery, J., dissenting.

Appeal from superior court, Davidson county; Brown, Judge.

Action of trespass by H. T. Phillips against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action In the nature of trespass to recover damages caused by the appropriation by the defendant of a part of the plaintiff's land for the purpose of erecting and maintaining a telegraph line. The following are the material parts of the complaint and answer:

The complaint alleges the incorporation of the defendant, and the plaintiff's ownership of the land. It then proceeds as follows: "(3) That the defendant has caused to be placed in and upon said land, and extending across the same the length of a mile or more, a row of posts, and has sunk anchor wires from some of the posts into the ground, and has strung wires over and across the said premises, and unlawfully and wrongfully continue to keep up and maintain the said posts and wires, going upon and over said lands to attend to the same, and have thereby taken and appropriated plaintiff's said lands to its own use; the said posts and wires are an obstruction to the plaintiff in the cultivation and use of his farm, interfering with the use of machinery thereon, and constitute a continual nuisance to. plaintiff; and that plaintiff has been and will be damaged by the maintenance of said posts and wires, and the appropriation of his lands therefor. in the sum of eight hundred dollars."

The answer denies each and every material allegation in plaintiff's complaint, and, for further answer, says:. "(1) The said defandant is a telegraph company chartered and organized under the laws of the state of New York; that it has, prior to the acts complained of by plaintiff in his complaint in said cause, ac-

[41 S.E. 1023]

cepted the provisions of an act of congress entitled 'An act to aid in the construction of telegraph lines, and to secure to the government the uses of the same for postal, military and other purposes, ' approved July 24, 1866 (sections 5263-5268, Rev. St.), and by virtue of said act, and section 3964 of the Revised Statutes, and of the laws of the state of North Carolina, and its charter, it had the right to construct, maintain, and operate its telegraph line along and upon the right of way of the Southern Railway through the state of North Carolina; that the defendant is an interstate telegraph company, and all its lines in the state of North Carolina are engaged in interstate commerce, by their connection with other lines of said company extending to and through all the states of this Union, and the principal towns and cities therein, and cable lines extending across the Atlantic Ocean, into the principal cities of all the nations of the earth, and all of its lines in said county of Davidson are upon the said railway right of way. (2) Defendant says that all the holes dug in the ground, and the posts planted therein, as well as the anchor wires sunk in the ground and connecting with said posts, which are complained of by the plaintiff in the third cause of action of his complaint filed in this cause, were dug, and said posts planted, and anchor wires sunk, etc., upon the right of way of the Southern Railway Company, for a public use, and said right of way, under the statutes of this state, was acquired for the public use. Defendant denies that the construction and maintenance of any of the poles and wires upon the lands claimed by the plaintiff in his said complaint at all interferes with his lawful right to the use of said lands, and denies that the construction and maintenance of said telegraph line was and is unlawful and a nuisance, and that plaintiff has been or will be damaged thereby in the sum of eight hundred dollars, or any sum whatever. (3) Defendant says the lands claimed by plaintiff in the third cause of action of his complaint, upon which it constructed its telegraph poles and strung its wires and planted its anchors, are a part and parcel of the right of way of the Southern Railway Company, which, by virtue of section 3964 of the Revised Statutes of the United States, is a post road, and by authority of sections 5263-5268, Rev. St., it had the right to construct its lines thereon, and that said telegraph poles, wires, and guy wires were constructed thereon by the consent of the said Southern Railway Company, and by the payment of Just compensation to the Southern Railway Company. (4) For further plea, the defendant says: If the posts and guy wires which plaintiff, in third cause of his said complaint, says were placed and are extending across his lands for the length of a mile or more, with wires strung thereon, are upon the lands of the plaintiff, as alleged in said third cause of action, plaintiff is entitled to receive in this action the actual cash value of the land actu ally occupied by said poles and guy wires, and nothing more, as damages for the construction and maintenance of said telegraph line thereon."

By permission of the court, defendant filed the following amendment to its answer: "And before the construction of the said telegraph line along and upon the said...

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