St. Louis, I. M. & S. Ry. Co. v. Batesville & Winerva Tel. Co.

• Citation: 97 S.W. 660
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BATESVILLE & WINERVA TELEPHONE CO.
• Decision Date: 05 November 1906
• Court: Supreme Court of Arkansas

97 S.W. 660

ST. LOUIS, I. M. & S. RY. CO. v. BATESVILLE & WINERVA TELEPHONE CO.

Supreme Court of Arkansas.

November 5, 1906.

Appeal from Circuit Court, Izard County; John W. Meeks, Judge.

Action by the Batesville & Winerva Telephone Company against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed in part.

Plaintiff, telephone company, sued the railway company and the Western Union Telegraph Company for a tort charging, first, that in 1901, 1902, and 1903 it was engaged in the telephone business operating a telephone line in certain counties in Arkansas, running along the east bank of the White river, and upon its own right of way; that in 1901 and 1902 while defendants were laying and constructing their railway and telegraph line, they unlawfully, willfully, and intentionally cut, tore down, and destroyed a large number of plaintiff's telephone poles and wires where the same touched the right of way of the railway company; that the tort was committed by both defendants while they were laying out their right of way and while constructing their lines of railroad and telegraph, that plaintiff expended much time and money in resetting and repairing its line to its damage in the sum of $3,500. The second count charged that in 1903, defendants willfully and intentionally cut down and removed all of plaintiff's poles and wires located on defendants' right of way in certain counties, for which plaintiff prayed judgment for the sum of $10,000 double damages. Defendants denied that they tore down the telephone poles as alleged or that plaintiff was damaged; that defendants, or either of them held any right of way or telegraph line during 1901, 1902, but that if any damages were done to plaintiff's telephone line it was done by the White River Railway Company, its contractors, etc., for whom defendants were not responsible. As a third count of the answer, the railway company admitted that in 1903 it purchased and secured all the rights and privileges of the White River Railway Company, and that defendant railway company then removed certain poles and telephone wires from plaintiff's right of way for the reason that its vendor had purchased the right of way for its railway through such county, prior to the building of plaintiff's telephone line, and having exclusive right to such right of way removed certain of the poles and wires after notice to plaintiff. It further charged that plaintiff's poles and wires crossed the track in many places, was badly and unskillfully constructed, and was dangerous to the safe operation of the railroad, and pleaded a counterclaim for $179.90 incurred in removing the poles and wires.

B. S. Johnson, for appellant. John B. McCaleb and Bradshaw, Rhoton & Helen, for appellee.

HILL, C. J.

1. This was an action by the telephone company against the railroad company for removal by the latter of 13 miles of telegraph line from the railroad right of way. The reporter will state the issues and facts. The verdict and special finding fix the fact that the telephone line was constructed before the railroad company had definitely located its line, and the further fact that the telephone line was not interfering with the proper and safe operation of the railroad, and was not a nuisance. These declarations are against the weight of the evidence, but have substantial evidence to sustain them, and hence cannot be disturbed here. This takes from the case many questions presented on the instructions, and as to the evidence. This situation is presented, accepting the verdict as sustained by evidence. A telephone line is lawfully constructed. It obtains right of way over private land by verbal consent of the owners and along a highway under authority granted by section 2934, Kirby's Digest. Subsequently a railroad is constructed along the way occupied by the telephone line, and it acquires its right of way by purchase and conveyance from the landowners, and the county roads occupied by it were vacated (accepting a version most favorable to the appellant). The telephone line is constructed and maintained so as not to render dangerous the operation of the railroad, and not to interfere therewith, and was not a nuisance along the highway or right of way. Can the railroad company, after repeated demands upon the telephone company to remove its line from its right of way, remove the telephone line from its right of way, and thereby destroy its utility?

Concede without deciding, that the telephone company was a mere licensee, and that the sale of the land containing its line revoked the license for its being there, and the vacation of the county roads...