Postal Tel. Cable Co. of Idaho v. Oregon Short Line R. Co.

• Decision Date: 19 June 1900
• Docket Number: 58.
• Citation: 104 F. 623
• Parties: POSTAL TEL. CABLE CO. OF IDAHO v. OREGON SHORT LINE R. CO.
• Court: U.S. District Court — District of Idaho

104 F. 623

POSTAL TEL. CABLE CO. OF IDAHO v. OREGON SHORT LINE R. CO.

No. 58.

United States Circuit Court, D. Idaho, Southern Division.

June 19, 1900

J. R McIntosh and O. W. Powers, for plaintiff.

P. L Williams and F. S. Dietrich, for defendant.

BEATTY District Judge.

By this action the plaintiff seeks the right to erect its telegraph line along the railroad and upon the right of way of defendant. The result contemplated would give two telegraph lines, instead of one, with such possible competition as would give to all the choice of service, and possibly a better service at lower rates. That which leads to such results is not contrary to public policy. So far as concerns the public, the attainment of plaintiff's object would not be contrary to its interests, but would be promotive thereof. The question, however, is whether the law will justify the application by plaintiff to its use of defendant's property.

It is objected that the complaint does not so describe the land or premises which plaintiff asks to have appropriated to its use that it can be definitely described in a judgment. It asks for the right of way upon the railroad right of way between certain named termini, through certain named counties in the state, and describes the amount of ground needed for each pole, the distance of the poles from each other, and their distance from the railroad track. Section 5216, Rev. St Idaho, says, 'If a right of way be sought the complaint must show the location, general route and termini, and must be accompanied with maps thereof. ' When the object is the condemnation of a right of way through a farm or a legal subdivision, it probably should be described by such subdivision; but this is for a right of way on an established railroad right of way, the locus of which is accurately fixed by survey, of which there are accessible records. It would not seem that there can be any difficulty in so framing a judgment with such description of the land taken that all parties may know where it is. The allegations of the complaint seem to meet the statutory requirements and leave the objection untenable.

The next objection is that plaintiff is not a corporation, and is not organized in good faith. No one will doubt that the organization of plaintiff was for the purpose of co-operation with the Postal Telegraph & Cable Company of New York. It may be said that it is subordinate to the latter, and is to assist it in carrying out its objects,-- it may be, nothing more than its agent. This may be said of it more from general circumstances than from the testimony in the case. This, however, is a common procedure with all large corporations. A recent instance is in mind. A railroad company now operating in North Idaho, desiring to add a branch of about five miles, organized an independent company to build the same; and I think this defendant, in building the branch railroad from Nampa to Boise, did the same. It seems no unusual matter for a large corporation to utilize small corporations for its purposes. If the plaintiff, however, is organized for any fraudulent purpose, the court will not lend its aid in the consummation of any fraud; but this I am unable to find against the plaintiff from the evidence. The facts are that it appears by the record to have been organized according to the statutes. It has held corporate meetings and performed corporate acts. It has not built any telegraph line within the territory for which it was organized, but it is for the privilege of doing that in the place it deems most available and best for its use that is is now in this forum. Until it is clearly shown that its organization is based upon fraud, it as organized and acting in good faith, and accede to it accordingly all the statutory rights allowed it. Moreover, section 2636, Rev. St. Idaho, precludes in this action any examination into its 'due incorporation * * * or its right to exercise corporate powers.'

Upon the question of the right asked by plaintiff we have section 5210, Rev. St. Idaho, extending to...