Roaring Springs Townsite Co. v. Paducah Telephone Co.

• Decision Date: 31 January 1914
• Citation: 164 S.W. 50
• Parties: ROARING SPRINGS TOWNSITE CO. v. PADUCAH TELEPHONE CO.
• Court: Texas Court of Appeals

164 S.W. 50

ROARING SPRINGS TOWNSITE CO. v. PADUCAH TELEPHONE CO.

Court of Civil Appeals of Texas. Amarillo.

January 31, 1914.

On Motion for Rehearing, March 7, 1914.

Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.

Suit by the Roaring Springs Townsite Company against the Paducah Telephone Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Fires, Decker & Clarke, of Quanah, for appellant. T. T. Bouldin, of Matador, for appellee.

HENDRICKS, J.

The appellant, the Roaring Springs Townsite Company, a corporation, presented its petition for injunction, and for restraining order, against the Paducah Telephone Company to the judge of the Fiftieth Judicial District of Texas, and injunction was refused on preliminary hearing upon consideration of the petition, without an answer or evidence. A résumé of appellant's petition for the purpose of clarifying the assertion of issues which, it is asserted, govern the right to the injunction, it is sufficient to state that the townsite company was the owner of a section of land in Motley county, and had caused about 160 acres of same near the center of the section to be platted and marked upon the ground into lots, blocks, streets, and alleys, and had filed with the clerk of the county court of Motley county a record of said plat, designating the lots, blocks, streets, and alleys of said townsite company, together with a deed dedicating to public use the said streets and alleys, with the following reservation: "It is especially stipulated and the right is reserved in the Roaring Springs Townsite Company in and to all streets and alleys in said town to grant and convey to any person, persons, corporation, or corporations, the right to construct in, along, over, and across any of the streets and alleys of said town, telephone and telegraph lines, electric light wires and poles to sustain same, * * * and no person or corporation other than the ones designated in writing by the Roaring Springs Townsite Company shall have the right or power to use said streets and alleys for telegraph or telephone purposes." The appellant says that it "had, at a large expense, procured the construction of the Quanah, Acme & Pacific Railway Company across said lands and the opening of a station known as Roaring Springs"; that on June 19, 1913, it began the sale of lots in the platted part of the townsite, and purchasers had begun the erection of business houses and residences thereon, but that a greater part of the lots and blocks remain unsold, and are the property of appellant; that it has not expanded sufficient to incorporate into a municipality; that on July 15, 1913, the Paducah Telephone Company, through its agents, over the protest of the plaintiff, began placing poles upon the unplatted part of the lands of the townsite company, and also on the streets of the platted part of said townsite company, and stringing wires upon said poles at such places, and refused to pay appellant anything for the use of the streets.

The appellant avers that the reservation in the deed of dedication previously quoted by us was not inserted with the intention of creating a monopoly in the telephone service of the town of Roaring Springs, and tenders in its petition the right to construct and operate a telephone line and exchange over and across the streets and alleys at convenient places, as not to incommode the public in the use of the same, "and upon the payment to plaintiff of a reasonable compensation for said right, privilege, and franchise." It further alleges that it is attempting to build a town in accordance with modern conveniences, and that in furtherance of such purpose it has procured an agreement with the Southwestern Telephone & Telegraph Company for the installation at an early date of a central station and exchange in said town, which company, it states, is much more enlarged in its facilities for telephone communications in the state of Texas, and outside of the state, and that the appellee only attempts to furnish long-distance connections in four counties of the state, and that its service is inferior to the service of the other company. Appellant specifically alleges that it "desires that telephone poles only be placed on and along the alleys of said town, and in platting said town arranged the alleys so that they could be used for this purpose, but that defendant is placing its poles in, along, and upon the streets of said town, and that the same are unsightly, tend to lessen the free use of the street by the public, and interfere with the sidewalks and curbing to be placed and now being placed in, along, and upon said streets."

The appellant further alleges an attempted procedure of condemnation of the right of way by the telephone company in the county court of Motley county, and a resistance on its part (the townsite company) in said county court, by pleadings and objections filed in said suit, alleging in such pleadings that the telephone company does not sufficiently describe the right of way; that it had procured a restraining order and injunction in the district court against said telephone company, in another proceeding, from further building, constructing, and operating a telephone line upon the land of petitioner as described in the application for condemnation of the Paducah Telephone Company; that the telephone company was improperly incorporated, and was not entitled to the right of condemnation. The condemnation suit was for the acquisition, as we understand the pleadings, of that portion of the townsite company's property not specifically platted into blocks, lots, streets, and alleys.

Appellant alleges the same proposition here as in the condemnation suit, that appellee is not empowered to exercise the right of eminent domain, for the reason that its attempted articles of incorporation only authorized it to operate telephone lines and exchanges; the laws of Texas authorizing corporations of this character for the construction and maintenance only of a telegraph and telephone line.

The following has been the statutory law of this state for many years with reference to telegraph companies: "Corporations created for the purpose of constructing and maintaining magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state in such manner as not to incommode the public in the use of such roads, streets and waters." Article 1231, R. S. 1911. It is also provided by article 1232, immediately following the article quoted, that such corporations "may proceed to obtain the right of way and to condemn lands for the use of the corporation in the manner provided by law in the case of railway corporations."

The Supreme Court of this state held, in the case of San Antonio & A. P. Ry. Co. v. Southwestern Telegraph & Telephone Company, 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884, construing the previous articles, taken in connection with the act of 1891 (Acts 22d Leg. c. 101), which provided for the creation of corporations for "the construction and maintenance of a telegraph and telephone line," that said acts embraced telephone companies, and that such companies enjoy the same right of eminent domain in condemnation proceedings as telegraph companies.

Article 1235 of the same chapter of the two previous articles quoted provides that: "The corporate authorities of any city, town or village through which the line of any telegraph corporation is to pass may, by ordinance or otherwise, specify where the posts, piers or abutments shall be located, the kind of posts that shall be used, the height at which the wires shall be run; and such companies shall be governed by the regulations thus prescribed," etc.

In the case of the City of Brownwood v. Brown Telegraph & Telephone Company (Sup.) 157 S. W. 1165, the Supreme Court declared, in construing the three articles quoted by us: "It is apparent that the right of the telephone company to pass through the city or town, over and upon its streets, is absolute, and a city has no authority to deny that right. The interest of the public in convenient service by such means of communication is the basis of the grant, and is superior to any private interest." However, by virtue of article 1235, last quoted, the use by the corporation of the streets may be controlled by the city by a reasonable exercise of the power, and said city may "enforce any reasonable regulations as to the use of the streets by the city, but such city cannot use its power to regulate in such manner as to deny the corporation the right to pass through the town, and in so doing to use the streets in `such way as not to incommode the public.'" The Supreme Court in that case further held that "the city had no authority to require the telephone company, to accept its ordinances as a condition precedent to entering the city."

The Court of Civil Appeals of the Second District, in the case of City of Texarkana v S. W. Telegraph & Telephone Co., 48 Tex. Civ. App. 16, 106 S. W. 915, also held that the article first quoted (1231) is exclusive as to the foundation of the right, given by the state, to corporations of this character as to the use of the public highways, subject to a reasonable regulation of a municipality when a telephone line is constructed over its streets; hence, by virtue of the statute, construed by the decisions, if the Paducah Telephone Company comes within the purview of the incorporation acts for the purpose of constructing and maintaining a telephone line, the reservation in the dedication deed of the Roaring Springs Townsite Company, attempting to retain the power to grant to such a corporation the right to construct "over and across any of the streets * * * of said town, a telephone or telegraph line," is void—and we are not concerned in this cause with the proposition...