Postal Telegraph-Cable Co. of Montana v. Oregon Short Line R. Co.

• Decision Date: 22 March 1902
• Citation: 114 F. 787
• Parties: POSTAL TEL. CABLE CO. OF MONTANA v. OREGON SHORT LINE R. CO.
• Court: U.S. District Court — District of Montana

114 F. 787

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

United States Circuit Court, D. Montana.

March 22, 1902

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

P. L Williams and J. G. Willis, for defendant.

KNOWLES District Judge.

The plaintiff in this suit desires to have condemnation, for the purpose of a telegraph line, over and along certain portions of the right of way of the Oregon Short Line Railroad Company in Montana. Originally three suits were instituted for this purpose,-- one in Beaverhead county, one in Madison county and another in Silver Bow county. These suits were all consolidated in pursuance of a stipulation between the parties, and removed to this court upon the application of the defendant. It appears from the pleadings that the plaintiff is a corporation organized under the laws of Montana, and the defendant a corporation organized under the laws of Utah.

There is an objection made that the plaintiff is not entitled to be classed as a corporation de jure. It appears, however, that certain parties who were residents and citizens of the state of Montana, complied with the laws of said state in filing the proper certificate and in making the proper records to create a corporation under the laws of said state. Prima facie, this would create the corporation named as the plaintiff herein. There were certain meetings of the officers of the plaintiff corporation, and, among other proceedings, a resolution was offered and passed looking to the acquirement of a right of way over and along the defendant's railroad right of way in Montana, for the purpose of establishing a telegraph line. It would appear that under these conditions the defendant could not raise the question as to whether the plaintiff is in fact a corporation, or only a pretended or 'fake' corporation. That would be the prerogative of the state of Montana, in a proper suit instituted for that purpose by and through its proper officers. In Oregon Short Line R. Co. v. Postal Tel. Cable Co. of Idaho, 49 C.C.A. 663, 111 F. 842, it was held by the circuit court of appeals of this circuit, while considering a similar statute of Idaho, and in passing upon an objection identical with the one raised in this case, that such a corporation was a corporation de facto, and, as such, entitled to all the rights and privileges of a corporation, including the exercise of the power of eminent domain.

Plaintiff, on the argument before this court, claimed a grant of the right of way over and along the defendant's railroad right of way under and by virtue of the provisions of sections 5263 to 5269 of the Revised Statutes of the United States. Evidence was introduced to show that plaintiff had accepted the conditions named in the aforesaid statutes. Section 5263 of the statutes supra reads as follows:

'Sec. 5263. Any telegraph company now organized, or which may hereafter be organized, under the laws of any state, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads.'

It will be seen, by this statute, that the right is given to any telegraph corporation organized under the laws of any state to construct and maintain its telegraph line over and along any of the military or post roads of the United States which have been, or may hereafter be, declared such by law. Such lines must not interfere with the ordinary travel on such military or post roads. By section 3964 of the Revised Statutes of the United States, all railroads such as that operated by the defendant in this state have been and are declared to be post roads. If this statute is applicable to this case, then the act of congress itself determines whether the power of eminent domain should be put in motion for the purposes named, and whether the exigencies of the occasion and the public welfare required or justified its exercise. In the case of Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206, the supreme court, speaking by Mr. Justice Field, said:

' * * * When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. * * * '

Although congress had put its right of eminent domain in motion by granting to the telegraph companies who complied with the foregoing provisions of the statute the right of way over and along post roads, and determined the necessity for using said ways for telegraph purposes, it at the same time imposed the condition that such use should not interfere with the ordinary travel thereon; but there was a further constitutional limitation that, before such right of way could be so utilized, just compensation should be awarded therefore to the owners or proprietors thereof. There would not appear to be any doubt, from the evidence presented in this case, but that the telegraph line as proposed by the plaintiff may be constructed over and along defendant's said right of way, so as not to interfere with the ordinary travel thereon. In this grant to the telegraph companies, congress, however, made no provision for the assessment of the damages arising out of the taking. In the case of Kohl v. U.S., 91 U.S. 367, 23 L.Ed. 449, the supreme court held that an action could be maintained as a civil action at law to fix the damages arising from the taking of any property for a public use. The court there said:

' * * * It is difficult, then, to see why a proceeding to take land in virtue of the government's eminent domain, and determining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court. It is an attempt to enforce a legal right. * * * '

In that case, after adverting to the fact that congress had made no provision for the assessing of damages for property taken under the power of eminent domain, the court said:

' * * * But there is no special provision for ascertaining the just compensation to be made for land taken. That is left to the ordinary processes of the law. * * * '

The views expressed in this opinion were affirmed in the above case of Boom Co. v. Patterson.

It would seem, then, that the plaintiff company had the right to...