Sebastian Lake Developments, Inc. v. United Tel. Co.

• Decision Date: 24 January 1966
• Docket Number: No. 5-3719,5-3719
• Citation: 240 Ark. 76,398 S.W.2d 208
• Parties: SEBASTIAN LAKE DEVELOPMENTS, INC., Appellant, v. UNITED TELEPHONE COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 208

398 S.W.2d 208

240 Ark. 76

SEBASTIAN LAKE DEVELOPMENTS, INC., Appellant, v.UNITED TELEPHONE COMPANY, Appellee.

No. 5-3719.

Supreme Court of Arkansas.

Jan. 24, 1966.

Garner & Parker, Fort Smith, for appellant.

Dale L. Bumpers, Charleston, for appellee.

HARRIS, Chief Justice.

The principal question on this appeal is whether a public service corporation can acquire an easement by prescription.Sebastian Lake Developments, Inc., appellant herein, is the owner of certain real estate lying in the Greenwood district of Sebastian County.United Telephone Company, appellee herein, which serves the communities of Bonanza and Hackett, Arkansas, instituted suit against appellant company, asserting that it (appellee), in furnishing service to the aforementioned communities, 'has owned, operated and maintained a telephone line across the aforesaid lands for a period of over twenty years last past, and had maintained the said line for approximately twenty years before the acquisition of the aforesaid lands by the defendant.

VI

'That prior to the purchase of the said property aforesaid by the defendant, numerous surveys, studies and observations were made by the officers of the defendant corporation, its agents and employees, and the said defendant, by its officers, was fully aware of the existence of the aforesaid telephone lines belonging to the plaintiff and had due notice of their said existence prior to the acquisition of the said lands.

VII

'That the defendant, subsequent to its acquisition of the lands aforesaid, immediately commenced construction of a dam on a portion of the above described lands and that the said dam is presently under construction by the defendant.

VIII

'That the effect of the completion of the said dam will be to flood the lands described hereinabove, and specifically the poles and lines operated, owned and maintained by the plaintiff.'

Appellee claimed an easement by prescription, and asked that the Sebastian Lake Company be enjoined from flooding the property where appellee had acquired the easement.Appellant answered, asserting that it had no notice of the existence of poles and lines prior to acquiring the lands, and denying that the telephone company has acquired any easement by prescription.The answer prayed that appellee be ordered and directed to remove the lines and poles from the lands belonging to appellant.The case proceeded to trial, and, after hearing evidence, the court entered its decree, finding that the telephone company had owned, operated, and maintained telephone lines and poles across the lands involved for a period of more than twenty years; that the lines and poles are clearly visible from State HighwayNo. 45, and that the officers, agents, and employees of appellant company knew, or should have known, of the existence of the lines and poles prior to its purchase of the lands; that appellee had acquired an easement across these lands by prescription.The court further found that appellant company should be enjoined from interfering with appellee's operation and maintenance of the lines and poles, and also found that appellant company had built a dam and 'admittedly may flood the poles belonging to the aforesaid plaintiff.'As to the flooding of the premises by appellant, the court required that Sebastian Lake Developments, Inc., should post a bond in the sum of $2,000.00 to compensate appellee if the flooding should interfere with or impair United Telephone Company's right to the use of the lines and poles.¹From the decree so entered, appellant brings this appeal.Appellant confines its arguments, first, to the question of whether a public service corporation can legally acquire an easement by prescription, and second, whether the proof in this case supports the finding by the Chancellor.

Ark.Stat.Ann. § 73-1801 through § 73-1805 (Repl.1957) deals with the right of certain utility companies (telephone and telegraph companies) to condemn rights of way and construction of lines.Appellant points out that although Section 73-1804 gives these companies the right to peacefully enter upon lands for the purpose of surveying, locating and laying out their lines, the companies are (quoting statute)'liable, however, for any damage that may result by reason of such acts.'Appellant also directs our attention to Ark.Stat.Ann. § 35-201(Repl.1962), which provides:

'Any railroad, telegraph or telephone company, organized under the laws of this State, after having surveyed and located its lines of railroad, telegraph or telephone, shall in all ²cases where such companies fail to obtain by agreement with the owner of the property through which said lines of railroad, telegraph or telephone may be located, the right of way over the same, apply to the Circuit Court of the county in which said property is situated, by petition, to have the damages for such right of way assessed, * * *.'

Likewise, appellant contends that a prescriptive right by a corporation is violative of Article 12, Section 9, of the Arkansas Constitution.We disagree with appellant's argument, holding that these provisions relate to peaceable entry and proceedings thereunder.³Ark.Stat,.ann. § 35-101(Repl.1962), which is the first section under the title, 'Eminent Domain,' provides:

'Whenever any corporation authorized by law to appropriate private property for its use shall have entered upon and appropriated any property, real or personal, the owner of such property shall have the right to bring an action against such corporation in the circuit court of the county in which said property is situated for damages for such appropriation at any time before an action at law or in equity for the recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations ⁴ and the measure of recovery in such action shall be the same as that governing proceedings by corporations for the comdemnation of property. * * *'

This section negates appellant's contention that a public service corporation cannot acquire an easement by prescription.Certainly, the section includes a telephone company, for a telephone company holds the power of eminent domain, and furthermore, the language definitely includes any corporation possessing the authority to appropriate private property for its use.It will be noted that the section specifically sets out that the owner of property, whose land has been appropriated by a corporation for its use, shall bring his claim against the corporation at any time before such claim would be barred by the statute of limitations.This last provision would be useless and superfluous if appellant's contention is correct.

In Mo. & No. Ark. Railroad Co. v. Chapman, 150 Ark. 334, 234 S.W. 171, a situation with some similarity was presented.Appellees instituted suit against the appellant railroad for compensation allegedly due because the railroad had appropriated one hundred feet of land for a right of way.The company constructed its railroad across this strip of land in 1908, and had operated across this strip from that time until 1919, when appellees filed their suit for compensation.The statute of limitations was pleaded by the company.This defense was not allowed by the trial court, and appellees recovered a judgment.On appeal, this court reversed the trial court, stating:

'Section 3930⁵ of Crawford & Moses' Digest provides that, whenever any corporation, authorized by law to appropriate private property for its use shall have entered upon and appropriated any property, the owner of the property shall have the right to bring an action against such corporation for damages for such appropriation at any time before an...