San Antonio & A. P. Ry. Co. v. Southwestern Tel. & Tel. Co.

• Decision Date: 21 March 1900
• Citation: 56 S.W. 201
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. v. SOUTH-WESTERN TELEGRAPH & TELEPHONE CO.

56 S.W. 201

SAN ANTONIO & A. P. RY. CO. v. SOUTH-WESTERN TELEGRAPH & TELEPHONE CO.

Court of Civil Appeals of Texas.

March 21, 1900.

Appeal from Milam county court; W. M. McGregory, Judge.

Proceedings by the Southwestern Telegraph & Telephone Company against the San Antonio & Aransas Pass Railway Company to condemn part of defendant's right of way. From a judgment condemning parts of the right of way, and awarding defendant damages therefor, defendant appeals. Affirmed.

Robson & Duman, for appellant. McLaurin & Wozencraft, for appellee.

NEILL, J.

This appeal is from a proceeding on the part of the appellee to condemn so much of appellant's right of way from the town of Cameron to the north boundary line of Milam county as was necessary to place its poles and wires thereupon. Commissioners were duly appointed to assess the damages, who, after hearing the evidence, assessed the damages at $40. From this award both parties appealed to the county court, where, upon trial, a judgment was rendered in favor of appellee, condemning, for the purposes aforesaid so much of appellant's right of way as was sought by the appellee, and awarding damages in favor of appellant in the sum of $100. Appellee is a foreign corporation incorporated under the laws of New York, authorized by its charter to do a telegraph business, and has a permit to do such business in this state as its charter permitted. It is contended by the assignments of error: (1) That, the legislature never having extended the power of eminent domain to telephone companies, such a company has no power or right to maintain a suit to condemn and take property against the consent of the owner; and (2) that the court erred in not assessing in favor of appellant damages measured by the value of the property condemned to appellee for telegraph and telephone purposes. It was held by this court that, a telephone being a new species of telegraph, the right of eminent domain conferred by title 21, c. 7, Rev. St. 1895, on telegraph companies, was applicable to telephone companies, although the latter are not mentioned. Gulf, C. & S. F. Ry. Co. v. Southwestern Telegraph & Telephone Co., 45 S. W. 151; Southwestern Telegraph & Telephone Co. v. Gulf, C. & S. F. Ry. Co., 52 S. W. 107; Texas & N. O. R. Co. v. Postal Tel. Cable Co., Id. 108. Long after the publication of the opinions in which such holding was made, the supreme court, without referring to our opinions in the case of San Antonio & A. P. Ry. Co. v....