Postal Tel. Cable Co. of Utah v. Oregon S.L.R. Co.

Decision Date10 May 1901
CourtUtah Supreme Court

Appeal from District Court, Salt Lake County.--Hon. A. N. Cherry Judge.

Action by the Postal Telegraph Cable Company of Utah, a corporation against the Oregon Short-Line Railroad Company, a corporation. From a judgment in favor of plaintiff, defendant appeals.


P. L Williams, Esq., for appellant.

Messrs. Powers, Straup & Lippman for respondent.

HALL, District Judge. Bartch and Baskin, JJ., concur.


HALL, District Judge.

In this case, it appears that on the fourteenth day of July, 1899, certain citizens of Utah, in connection with the assistant superintendent and the general counsel of the Postal Telegraph Cable Company, a corporation organized under the laws of New York, proceeded to organize under the laws of Utah the respondent herein, the Postal Telegraph Cable Company of Utah. Ten per cent. of the capital stock of the Utah corporation was paid in, the money being furnished by the New York corporation. All the requirements of the statutes of Utah relating to the organization of corporations were complied with. The articles of incorporation were duly filed with the county clerk of Salt Lake county, and a certified copy of the same was filed with the Secretary of State of Utah, who issued his certificate, as required by law, certifying that the respondent had complied with the provisions of the statutes and that it was duly incorporated. The directors of the respondent met and formally organized, directed that negotiations be had with appellant for a right of way to construct a telegraph line along its railroad right of way from Salt Lake City north to the Idaho State line, and adopted a resolution selecting the right of way, and also proceeded to accept the provisions of an act of Congress, approved July 24, 1866, entitled "An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal and military and other purposes." Failing in its negotiations, respondent commenced this proceeding under the eminent domain act of Utah to condemn a right of way for the purpose of constructing, maintaining, and operating its telegraph line upon the right of way of the appellant longitudinally, from Salt Lake City north, through the counties of Salt Lake, Davis, Weber, Box Elder, and Cache, in this State, to the State line of Utah and Idaho--a total distance of about one hundred miles. In its complaint the respondent set forth the character of the construction of the telegraph line designed, the length of the poles, their size at the base, the depth that they would be planted in the ground, their distance from the railroad track, and the size of the cross-arms upon which wires are proposed to be strung. It was also alleged in the complaint that, when crossing the track of appellant, the wires would be strung high enough for safety, and that on reasonable notice from appellant, when it was necessary, the poles would be moved to such a point as the appellant might designate. The distance of the poles from each other and the amount of ground each would occupy was alleged; the general route and termini were described; the necessity for the taking, and the failure of the parties to come to terms were set forth; and the fact that the telegraph line would not interfere with the appellant's business was stated, as well as other allegations not necessary here to repeat. The defendant demurred to the complaint upon two grounds: (1) That the court has no jurisdiction of the subject-matter of the action, so far as the same is situated outside of Salt Lake county and within the counties of Davis, Weber, Box Elder, and Cache, respectively; (2) that the complaint does not state facts sufficient to constitute a cause of action. After argument the demurrer was overruled by the lower court, and the appellant answered, denying the incorporation of respondent, and basing its defense principally upon an allegation that the respondent is the agent and under the control of the Postal Telegraph Cable Company of New York, a foreign corporation, which has not the power to exercise the right of eminent domain in this State, and which, through the organization of respondent, is seeking to do by indirection that which it can not accomplish in its own name directly, and that in reality respondent has no separate existence from the Postal Telegraph Cable Company of New York. The case was tried in the district court without a jury, and the court found the issues for the respondent, assessing appellant's damages at $ 100.

The contention of the appellant that the lower court had no jurisdiction of the subject-matter of the action, so far as the same is included within the counties of Davis, Weber, Box Elder, and Cache, respectively, is not tenable. The thing which is sought by respondent by this proceeding is an entirety. Railroad Co. v. Gough, 29 Kan. 94; Lower Kings River Water-Ditch Co. v. Kings River & F. Canal Co., 60 Cal. 408; Lewis, Em. Dom., sec. 475; St. Louis & C. R. Co. v. Postal Tel. Co., 173 Ill. 508, 51 N.E. 382. The damage which defendant is entitled to is for the whole property, and the cause of action arises in all five counties as a unit. The county lines crossing the right of way of appellant do not destroy the singleness of its use. Neither does it negative the fact that all the land constitutes but one right of way. As is said in Lewis, Em. Dom., sec. 475, in defining what constitutes an entire tract: "In general, it is so much as belongs to the same proprietor as that taken, and is contiguous to it or used together for a common purpose." Our statute upon the subject of eminent domain provides, among other things, as follows: "All proceedings under this chapter must be brought in the district court for the county in which the property or some part thereof is situated." This provision does not conflict with section 5, article 8, of our Constitution, which provides that "all civil and criminal business arising in any county must be tried in such county." Irrigation Co. v. McIntyre, 16 Utah 398, 52 P. 628. As said by this court in the case cited, the words of our Constitution mean "that an action affecting realty shall be tried in the county where the business or the cause arises, or, if the cause of action arises in more counties than one, then in either of said counties." Part of the right of way sought being in Salt Lake county, and being an entirety extending through the other counties named, the respondent under our law clearly had the right to include the whole in one proceeding. By so doing it avoided bringing five different cases in five different courts in five different counties to condemn the identical right of way against the same defendant.

It is objected that the complaint does not so describe the lands or premises which respondent asks to have appropriated to its use that it can be definitely described in a judgment. The complaint asks for a right of way upon the railroad right of way between certain named termini within 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. When the object in the condemnation case is to secure a right of way through a farm or 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 seem that there can be no difficulty in so framing a judgment, with such description of the land taken, that parties may know where it is. A railroad track is a fixed monument. Lake Shore & M. S. Ry. Co. v. Pittsburg, Ft. W. & C. Ry. Co., 71 Ill. 38. From this fixed monument other distances may be measured, and there does not appear to be any difficulty in locating exactly the line of construction to be followed by this telegraph company. The complaint describes the property upon which the respondent proposes to locate its telegraph line as the railway of appellant from Salt Lake City to Cannon Station, on the state line between Utah and Idaho. It alleges that the railroad bed is located near the center of its right of way, which is not less than one hundred feet in width; that the railroad track is four feet eight and one-half inches gauge, and upon the center of the railroad bed; that the telegraph line to be constructed will consist of poles thirty feet in length, planted firmly in the ground at a depth of not less than five feet, and thirty feet from the outer edge of the railroad track; that the poles will be erected at a distance of one hundred and sixty-seven feet from each other on the right of way; that each pole will be one foot in diameter at the base and will occupy only one square foot of ground; that no wires will be attached to appellant's fixtures, nor poles erected upon embankments, nor will the wires interfere with any other telegraph line; that the wires are to be attached to cross-arms high enough so that they will not interfere with appellant's property or business; and that the cross-arms will be eight feet in length. This description covers every reasonable intendment of the statute.

It is also insisted by appellant that the respondent is not a corporation either de jure or de facto. The respondent appears to have complied fully with the laws of Utah. Its incorporators entered into the required articles of agreement. They attached the statutory oath. Ten per cent. of the capital stock was paid to its treasurer in cash. The articles were filed with the county clerk of the...

To continue reading

Request your trial
23 cases
  • American Telephone & Telegraph Company of Missouri v. St. Louis, Iron Mountain & Southern Railway Company
    • United States
    • Missouri Supreme Court
    • March 28, 1907
    ...1264; Railroad v. Fowler, 133 Mo. 458; Railroad v. Telegraph Co., 173 Ill. 516; Railroad v. Telegraph Co., 58 C. C. A. 203; Telegraph Co. v. Railroad, 23 Utah 479; v. Telegraph Co., 24 So. 408; Tel. Co. v. Railroad, 111 F. 842. (3) The damages under the pleadings and evidence in this case a......
  • Telluride Power Co. v. Bruneau
    • United States
    • Utah Supreme Court
    • April 18, 1912
    ...125 P. 399 41 Utah 4 TELLURIDE POWER COMPANY v. BRUNEAU No ... (Postal Tel. Co. v. O. S. L. Co., 23 Utah 474; 65 P ... ...
  • State ex rel. Roland v. Dreyer
    • United States
    • Missouri Supreme Court
    • June 21, 1910
    ... ... App. 102; Ogden v. Bear Lake ... Co., 16 Utah 440. It is now the settled law of this ... State ... Railroad v. Tel. Co., 120 Ala. 21; Steel v ... Epson, 142 ... ...
  • W.U. Tel. Co. v. Louisville & N.R. Co.
    • United States
    • Mississippi Supreme Court
    • July 6, 1914
    ... ... In the case of M. & O ... R. R. Co. v. Postal Tel. Co., 76 Miss. 731, this court ... held, at pages 752 ... Tel ... Co., 77 S.W. 321; Postal Tel. Co. v. Oregon Railroad ... Co., 23 Utah 474; Mobile & Ohio R. Co. v ... Postal ... Telegraph & Cable Co. v. Southern Railroad Co ... (C. C.), 89 F. 190; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT