Postal Tel. Cable Co v. Norfolk& W. R. Co

• Decision Date: 24 March 1892
• Citation: 14 S.E. 803,88 Va. 920
• Court: Virginia Supreme Court
• Parties: Postal Telegraph Cable Co. v. Norfolk& W. R. Co.

14 S.E. 803

88 Va. 920

Postal Telegraph Cable Co.

v.Norfolk& W. R. Co.

Supreme Court of Appeals of Virginia.

March 24, 1892.

Eminent Domain—Telegraph Companies—Right of Wat op Railroad—Condemnation.

Code, §1287, providing that telegraph companies may construct their lines "along and parallel to any of the railroads of the state, " does not authorize the condemnation of a right of way by a telegraph company along and upon the right of way of a railroad company. Lewis, P., and Hinton, J., dissenting.

Proceedings by the Postal Telegraph Cable Company to acquire a right of way along and upon the right of way of the Norfolk & Western Railroad Company. From a judgment for the railroad company the telegraph company appeals. Affirmed.

J. Samuel Parrish, Edgar Allan, and E. C. Burks, for plaintiff in error.

Robert Stiles, A. L. Holla day, and George S. Bernard, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Prince George county, rendered on the 3d day of September, 1891, and is the sequel of the case of Postal Telegraph Cable Co. v. Norfolk & W. R. Co., heard and decided in this court, and reported in 87 Va. 349, 12 S. E. Rep. 613, where it was remanded for final judgment. As appears from that case, it is a proceeding in the county court of Prince George county by the plaintiff in error to condemn the land of the Norfolk & Western Railroad Company for the use of the plaintiff in error, the telegraph com pany, in erecting its line upon the line of the "railroad company. When the case went back for further proceedings the county court fixed a day for the commissioners to act in the condemnation proceedings to ascertain the damages to be paid by the plaintiff for the right of way desired. This was done, and the commissioners fixed the damages at $200, and the county court of Prince George county approved the report of the commissioners. The Norfolk & Western Railroad Company applied for and obtained a writ of error to the said judgment of the county court, and, the case coming on to be heard in the said circuit court of Prince George county, upon said writ of error, the said court reversed the judgment of the said county court of Prince George county, and dismissed the proceedings instituted in said county court by the Postal Telegraph Cable Company against the Norfolk & Western Railroad Company for the condemnation of the property of the railroad for the use of the telegraph company; whereupon the plaintiff in error, the Postal Telegraph Cable Company, applied for and obtained a writ of error to this court.

The error assigned by the plaintiff in error is that the circuit court erred in reversing the order of the county court in the premises it being plainly right, proper, and justified by the law, which had been strictly followed in all the proceedings in the said county court. The county court held that, by virtue of Code Va. §§ 1287-1290, the Postal Telegraph Cable Company acquired the right to enter upon the right of way, road-bed, and lands of the Norfolk & Western Railroad Company, and by regular condemnation proceedings in the county court of that county take such land of the railroad company as might be requisite for their purposes for the construction of the line of the telegraph company, upon paying such compensation therefor as the commissioners should fix, and the county court approve, which was done accordingly. Upon writ of error to the circuit court this judgment of the county court was reversed, and the condemnation proceedings dismissed, as stated; these two courts differing as to the proper construction of the foregoing sections of the Code; the plaintiff in error insisting that the act in question gives it the right to go upon the railroad land, which had been acquired for railroad purposes, and the county court agreed with it; the defendant in error contending that the telegraph company had no right to go Upon its land, but only along-side of its right of way, or strip of land 100 feet wide, but not on it, and the circuit court agreed with it.

We must first here consider the act in question, and its terms, in order to decide between them. Let us see what is provided by law. Section 1287 provides as fol lows: "Every telegraph and telephone company incorporated by this or any other state, or by the United States, may construct, maintain, and operate its line along any of the state or county roads or works, and over the waters of the state, and along and parallel to any of the railroads of the state, provided the ordinary use of such road, works, railroad, and waters be not thereby obstructed; and along or over the streets of any city or town, with the consent of the council thereof." Section 1288 provides for contracts for right of way. In this case no contract was or could be made, the railroad company refusing to contract, upon the grounds(1) that the company had already made such a contract with one telegraph company to go on its right of way, and (2) that another line of telegraph would incumber and embarrass their operations, and obstruct the ordinary use of their road. Section 1289 provides: "If the company and such owner cannot agree on the terms of such contract, the company shall be entitled to such right of way, upon making just compensation therefor to such owner. Such compensation shall be ascertained and made as provided in chapter 46 of the Code for the acquisition of land by a company incorporated for a work of internal improvement, when such internal improvement company cannot agree on the terms of the purchase with those entitled to the lands wanted for the purpose of the company, " and that the title acquired by the telegraph company shall be only a right of way. Section 1290 provides for a repeal, at the pleasure of the general assembly. Section 1074 of the said chapter 46, mentioned in section 1289, supra, is cited by the defendant in error to show that the condemnation provided for there, and which is made to apply here by section 1289, provides, as to the condemnation of laud, that the commissioners for condemnation shall be appointed by the county in which the land, or the greater part thereof, lies, for the purpose of obtaining a just compensation therefor. And the defendant in error shows that the land of the railroad company lies in six counties, so fur as the same is sought to be taken, and that the greater part thereof does not lie in Prince George county; and the contention is that the land of the railroad company cannot be condemned by sections, but must be condemned in its entirety as a whole, and by one tribunal, that there may be a just and even rate of compensation. If there can beany condemnation under the act in question, still insisting that there is no authority for the condemnation, nor entry on its lands, it is insisted further that the legislature, although intending to authorize the condemnation, has not provided the adequate machinery or proceeding to accomplish it; that it has provided no tribunal to ascertain the measure of damages, nor the mode of condemnation.

It is obvious that the first question for us to consider is, what is the true construction of section 1287 of the Code? The act authorizes the telegraph company to construct its line along any of the state orcounty roads or works, along or on the streets of a town or city. As to the railroads, it provides that...