Montgomery
J., dissenting.
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.
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 defendant 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, accepted
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 actually 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 right of way,
defendant company procured such right of way by regular
condemnation proceedings instituted in the superior court of
the county of Guilford, state of North Carolina, which
proceedings were removed by the defendant, the said Southern
Railway Company, from said court into the circuit court of
the United States for the Western district of the state of
North Carolina, and by virtue and authority of the orders,
judgments, and decrees of said court the right of said
defendant telegraph company to condemn so much of the right
of way of the said Southern Railway Company was adjudged,--to
construct, maintain, and operate its telegraph line along and
upon the right of way of the said Southern Railway Company
from Charlotte, North Carolina, to the state line between the
states of North Carolina and Virginia, where said right of
way crosses the same, and from the city of Greensboro, in
said county of Guilford, to the city of Raleigh, in said
state, and from said city of Greensboro to the city of
Winston, in said state, which includes the lands along and
upon the right of way of said Southern Railway Company in the
county of Davidson, claimed by plaintiff in his declaration
as his property. And on the 20th and 21st days of April,
1900, by authority of said court, damages were duly assessed
by commissioners appointed by said court, to the said
Southern Railway Company, for such right and privilege, whose
award was reported to said court, and filed in the office of
the clerk of said court, on the said 21st day of April, 1900,
to which award no exceptions were filed by the said Southern
Railway Company within the time authorized by the statutes of
the state of North Carolina, in conduct of said proceedings,
for the filing of the same, and at the time of filing the
same the said defendant company paid into the office of the
clerk of said court for the said railway company the amount
of said award, together with the costs in said cause."
The
following judgment was rendered: "This cause coming on
to be heard upon the facts admitted in the pleadings and upon
the facts admitted by counsel upon the trial, and hereto
annexed, and the jury having found the issue as follows:
'What permanent damages does plaintiff's land sustain
by reason of the existence of defendant's telegraph line
across said land within the right of way of the railroad
company? Answer. $190,'--it is adjudged that plaintiff
recover of defendant the sum of one hundred and ninety
dollars, together with costs of action."
The
following facts were admitted by the parties to the action
"That the land described
in the complaint is the land of plaintiff, subject to the
rights and titles of the North Carolina Railway Company by
virtue of the charter (Laws N.C. 1848--49, c. 82), and its
lessee, the Southern Railway Company, and that plaintiff
acquired his title by deed in May, 1900, which deed covers
the land described in the complaint; that on January, 1900,
the defendant company constructed a telegraph line across
said land within and upon the right of way of the said North
Carolina Railway Company, by placing 31 or 32 poles thereon,
with telegraph wires overhead thereon; that so far as the
said North Carolina Railroad Company and its lessee, the
Southern Railway Company, are concerned, defendant company
acquired by condemnation proceedings under the statutes of
North Carolina (Code, c. 49) the right to construct its
telegraph line along and upon the right of way of the said
North Carolina Railway Company and its lessee, the Southern
Railway Company, but that neither plaintiff, nor those under
whom he holds, were parties to the said condemnation
proceedings; that the said telegraph line was constructed
with and by the consent of the Southern Railway Company; that
the Southern Railway Company is the lessee of the North
Carolina Railway Company to the entire right of way property
and franchise of said railroad in Davidson county, which
lease was made and entered into on the ______ day of _____,
18--, for a period of 99 years, which lease is properly
recorded in the office of the register of deeds for Davidson
county; that the North Carolina Railway Company was chartered
under the laws of North Carolina (Laws 1848--49, c. 82),
which act is hereby made a part of this case on appeal; that
the defendant company...
