Postal Telegraph Cable Co. v. Southern Ry. Co.

• Decision Date: 09 September 1898
• Parties: POSTAL TELEGRAPH CABLE CO. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

89 F. 190

POSTAL TELEGRAPH CABLE CO. v. SOUTHERN RY. CO.

United States Circuit Court, W.D. North Carolina.

September 9, 1898

McIntosh Merriman & Merriman, for complainant.

Stiles & Holladay and F. H. Bushbee, for defendant.

SIMONTON Circuit Judge.

The Postal Telegraph Cable Company filed its petition in the superior court of Guilford county, N.C., seeking to condemn a right of way over the lands of the Southern Railway Company. The petitioner sought a right of way for the erection of its poles and the stretching of its wires a few feet within the outside limit of the right of way of the railway company, so as in no way to obstruct or interfere with the use of its track by the railway company. The right of way sought extended through many counties of the state, the whole distance being largely over 200 miles. The only other party to the petition was the Southern Railway Company. Upon the filing of the petition, proceedings were taken to remove the controversy into this court, and, a motion to remand having been refused, the case is now here. After the cause was retained in this court, the Postal Telegraph Cable Company filed another application, in effect praying that pending these proceedings it have leave to go upon the lands of the railway company, and construct its line, upon such terms of bond and security as the court should deem proper; at the same time averring that in no event could any other damages be assessed against it except such as were substantially nominal. The respondent, the Southern Railway Company, now comes, and moves that both petitions be dismissed. The motion is, in effect, a demurrer, and to sustain it are set out in full 16 grounds of demurrer. These embrace three general propositions: (1) That there is now no law in the state of North Carolina providing for the condemnation of lands or right of way for the use of telegraph companies. (2) That, if there be such law in North Carolina, the petition of the telegraph company in this case has not followed it in essential particulars. (3) That the petition is vague and uncertain in not stating how, and by what tenure, the lands owned by the railway company are held,-- whether only as an easement or in fee.

1. The respondent contends that there is no law in the state of North Carolina providing for the condemnation of land or right of way for the use of telegraphic companies. There is no doubt that any telegraph company incorporated by any state of the Union has the right to construct and maintain lines of telegraph along any railroad or other public highway in North Carolina, provided that they be so constructed as not to obstruct or hinder the usual travel thereon. Code N.C. 1883 Sec. 2007. Such right may be obtained from the railway company owner of the land, franchise, or easement therein by contract. Code N.C. 1883, Sec. 2008. The same Code (sections 2009, 2010) provided that, failing to make such a contract the telegraph company could, exercising the right of eminent domain, obtain the right of way desired, and the right to erect its poles, and establish offices, upon making just compensation therefor. This same right to construct its lines along the right of way of post roads of the United States is given under the act of congress of 1866 to all telegraph companies accepting the provisions of that act (Rev. St. U.S. §§ 5263, 5269); and the petitioner is one of the companies which has complied with all the requirements of this act, and has secured its privileges. But, notwithstanding this, before the privilege can be exercised upon lands, the property of private persons or corporations, the consent of such persons must be obtained, or such proceedings must be had as will insure them just compensation. No act of congress can give the right of taking private property for public purposes without first paying just compensation. Const. U.S. Amend. 5. And although section 8 of article 1 gives congress power to establish post roads, and to make all laws which may be necessary to carry this power into effect, 'like all other powers granted to congress by the constitution, the power to regulate commerce is subject to all the limitations imposed by this instrument, among them that of the fifth amendment. ' Monongahela Nav. Co. v. U.S., 148 U.S. 325, 13 Sup.Ct. 622. The mode or method of exercising this right of eminent domain is fixed by the laws of the several states. Such mode or method is exclusive in its character in ascertaining the amount of the just compensation to be allowed. See Roberts v. Railroad Co., 158 U.S. 1, 15 Sup.Ct. 756; Sweet v. Rechel, 159 U.S. 380, 16 Sup.Ct. 43. The federal courts do not interfere with it, provided due process of law be furnished. Chicago, B. & Q.R. Co. v.City of Chicago, 166 U.S. 226, 17 Sup.Ct. 581. This being the case, we must look to the statute law of North Carolina alone for the mode of proceeding in the condemnation of lands or right of way,-- for the conduct of the procedure, and for the steps by which the just compensation is reached. It is true that the purposes of the petitioner are greatly for the public benefit, that it is an important factor in interstate commerce, one of the agencies-- and a most valuable agent-- in interstate commerce, and that it is of most essential service to the citizen in time of peace and to the government in time of war. But the underlying proposition in our civilization and in Anglo-Saxon liberty is the protection of the citizen in the safety of his person and in the undisturbed enjoyment of his property. And when he is called upon to surrender that property against his will, for a public purpose, he is entitled to all the safeguards which the law has thrown around the exercise of the tremendous, though wholesome, right of eminent domain.

What then, is the law of North Carolina on this subject, as provided for telegraph companies? Section 2010 provides that whenever no agreement, after application, can be obtained by the telegraph company for securing the right of way, it may, first giving security for costs, file its petition before the superior court of the county in which the lands are situate, or through which the easement, franchise, or privilege extends, setting forth and describing the lands, privilege, or easement over which the right of way is claimed, and the owners thereof; and, if the right of way is sought only over an easement or right of way, the party owning such easement need be the only defendant. Section 2011 provides for the service of a copy of this petition, with the proper notice to be served on the defendant. These two sections bring the parties into court. The next section provides the steps to be taken after the parties are in court, and how the important constitutional provision shall be observed,-- the ascertainment of the just compensation, without which the right cannot be exercised. Section 2012 declares: 'The proceedings for the condemnation of lands or any easement or interest therein, for the use of telegraph companies; the appraisal of the lands or the interest therein; the duty of the commissioners of appraisal; the right of either party to file exceptions; the report of commissioners; the mode and manner of appeal; the power and authority of the court or judge; the final judgment and the manner of its entry and enforcement; and the rights of the company pending the appeal,'--these distinct essential steps in the proceedings, all leading to the final result and concerned with that only,-- 'shall be as prescribed in this chapter for condemning lands to the use of railroads. ' This chapter in the Code here spoken of is chapter 49. The provisions of this chapter with respect to the condemnation of lands for the use of railroads are found in section 1945 et seq. Inasmuch as section 2010 sets forth all the necessary statements for the petition of the telegraph company, and section 2011 provides for its service, only so much of the railroad law as directs proceedings after the petition is before the court is made applicable to telegraph companies. When, therefore, the petition is presented to the court, and the answers of defendants have been heard, with the proofs on each side, if the cause shown against the petition be insufficient, the court shall grant an order naming three disinterested freeholders to act as commissioners of appraisal, and shall fix the day for the first meeting of these commissioners. Section 1946 prescribes the duties and powers of the commissioners,-- to issue subpoenas, administer oaths, examine witnesses, view the premises, adjourn, and appraise the compensation; 'and in determining the amount of such compensation they shall not make any allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the construction of the proposed railroad. ' The commissioners make their report under seal. Either party may file exceptions before the clerk, and may appeal. If appeal is taken, the company may, notwithstanding, enter, take possession, and hold the land by paying into court the amount of the assessment. Then provision is made for the entry of final judgment, for the power to enforce the judgment, and care is taken to limit the title to the company only during its corporate existence. These are all the provisions made for the condemnation of lands or of any easement, and of the duty of commissioners, the right of exception, the report of commissioners, the mode of appeal, the authority of the court or judge, the final judgment and its mode of enforcement, and the right of the company pending appeal. Manifestly, it is all that is referred to in section 2012. This disposes of two positions taken in argument. Section 1949 authorizes the court...