St. Louis, I. M. & S. Ry. Co. v. Cape Girardeau Bell Tel. Co.

• Decision Date: 15 December 1908
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. CAPE GIRARDEAU BELL TELEPHONE CO. et al.
• Court: Missouri Court of Appeals

114 S.W. 586

134 Mo. App. 406

ST. LOUIS, I. M. & S. RY. CO. v. CAPE GIRARDEAU BELL TELEPHONE CO. et al.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. RAILROADS (§ 69)—RIGHT OF WAY—NATURE OF ESTATE.

Under the Constitution of this state, the estate of a railroad company in lands acquired for railroad purposes is an easement only, and the fee remains in the adjoining owners.

2. EMINENT DOMAIN (§ 120)—COMPENSATION —ADDITIONAL SERVITUDE—TELEPHONE LINE ON RAILROAD RIGHT OF WAY.

A railroad company which had acquired, by condemnation proceedings the right to cross the right of way and depot grounds of plaintiff railroad company, authorized defendant telephone company to erect poles in the right of way so acquired and to string wires thereon for the service of the railroad company and the general public. In consideration of the grant, defendant agreed to permit the consenting company to attach telegraph wires to defendant's poles for use in the operation of the railroad. The wires did not interfere with the operation of plaintiff's railroad, and the only disturbance of the soil of the common easement of the two railroads was the digging of holes for the erection of the poles. Held, that the erection of the poles and wires did not constitute an additional servitude on plaintiff's railroad property.

Appeal from Circuit Court, Cape Girardeau County; H. C. Riley, Judge.

Bill by the St. Louis, Iron Mountain & Southern Railway Company against the Cape Girardeau Bell Telephone Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. L. Clardy and J. F. Green, for appellant. R. B. Oliver, for respondents.

NORTONI, J.

This is a proceeding for injunctive relief. The plaintiff railroad company seeks to enjoin the defendant from constructing a telephone line across its depot grounds and right of way without first having obtained the consent of the plaintiff or compensated it for the privilege. Plaintiff is a railroad company incorporated under the laws of the state of Missouri. It owns and operates a line of standard-guage railroad in and through the city if Jackson in this state. The defendant is a telephone company organized and incorporated under the laws of Missouri for the purpose of furnishing telephone service to its patrons, the general public.

The facts out of which the controversy arose are as follows: The plaintiff, St. Louis, Iron Mountain & Southern Railway Company, runs north and south through the city of Jackson. The Cape Girardeau & Chester Railway Company is incorporated under the laws of Missouri, and owns and operates a line of standard-guage railroad, extending from the city of Jackson to Perryville, in this state. This line of railroad passes through a portion of the city of Jackson from the south-west to the northeast, and crosses the plaintiff's right of way on its station grounds and near its depot. It appears the Cape Girardeau & Chester Railway Company instituted a proceeding under our statute authorizing condemnation in such cases, and obtained its right to cross the plaintiff's station grounds, tracks, and right of way under the provisions of section 1035, Rev. St. 1899 (page 898, Ann. St. 1906). After having acquired the right of way across plaintiff's railroad grounds in the city of Jackson and established its railroad thereon, the Cape Girardeau & Chester Railway Company entered into a contract with the defendant the Cape Girardeau Bell Telephone Company, whereby the railroad company granted to the telephone company the right and privilege to construct, maintain, and operate for a term of 25 years its line and system of telephones over and along the right of way of the railroad company. The grant to the telephone company to erect its line on the right of way of the Cape Girardeau & Chester Railway Company was for the purpose of serving the Cape Girardeau & Chester Railway Company in the operation of its road. However, the telephone company also contemplated serving the general public who may see fit to patronize the telephone. In virtue of this contract, the railroad company was granted the right to attach to the poles and cross-arms of the telephone company, and to maintain thereon such wire or wires as were owned by the railroad company for its telegraph line, and the telephone company granted free service over its system to the officers and agents of the railroad company concerning railroad business. The telephone company proceeded, under the right obtained by this contract, to erect its line of the telephone along the right of way of the Cape Girardeau & Chester Railway Company. It was engaged in the act of planting its poles and constructing its line across the right of way of plaintiff, St. Louis, Iron Mountain & Southern Railway Company, in the city of Jackson, on the right of way theretofore condemned by the Cape Girardeau & Chester Railway Company, when this suit was instituted. For its right to plant the poles upon and across the plaintiff's right of way mentioned, the telephone company relies exclusively upon the grant of authority contained in its contract with the Cape Girardeau & Chester Railway Company to that effect. The telephone company had neither sought nor obtained the consent of the plaintiff, the St. Louis, Iron Mountain & Southern Railway Company thereto, nor had it, in any way, sought to condemn or obtain a right of way for telephone purposes across plaintiff's depot grounds and right of way. This suit is prosecuted upon the theory that, although the Cape Girardeau & Chester Railway Company may have obtained a right of way permitting the construction of a telephone for its use across plaintiff's right of way and depot grounds, the telephone service to be furnished the public amounts to an additional burden on the plaintiff's right of way. It is said the erection of the defendant's telephone system on the plaintiff's right of way for the purpose of accepting patronage from the general public, aside from the telephone service to be furnished the railroad company, is an additional servitude not allowed; that the contemplated additional use of the telephone, the service of the general public, amounts to a taking of plaintiff's property without just compensation. A temporary restraining order was issued. Upon a hearing of the case, however, the circuit court dismissed the bill and denied the injunction. Plaintiff appeals.

In Missouri the estate of a railroad company in lands acquired for railroad purposes, right of way, etc., amounts to an easement only. The fee to the lands thus occupied continues to reside in the adjacent landowners. Our constitutional provision to that effect has been frequently so expounded by the courts. St. L., etc., Ry. Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751; Boyce v. Mo. Pac. Ry. Co., 168 Mo. 583, 68 S. W. 920, 58 L. R. A. 442. The telegraph and telephone are conveniences so essential, if not indispensable, to the purposes of a railroad, that a railroad company may establish and construct one or both along the line of its right of way to be used in the prosecution of its business in operating the road, and such use, essential as it is, is not an additional servitude upon the fee. In other words, such conveniences essential to the prosecution of the calling for which the railroad right of way was acquired are within the contemplation of the original grant for railroad purposes, and therefore regarded as not an additional servitude upon the fee of the adjacent landowner. Authorities to this effect are numberous and sound in principle. Western Union Tel. Co. v. Rich, 19 Kan. 517, 27 Am. Rep. 159; M. & O. R. R. Co. v. Postal Tel. Co., 101 Tenn. 62, 46 S. W. 571, 41 L. R. A. 403; Amer. Tel. Co. v. Pearce, 71 Md. 535, 18 Atl. 910, 7 L. R. A. 200; Kester v. W. U. Tel. Co. (C. C.) 108 Fed. 926; S. W. R. R. Co. v. Southern, etc., Tel. Co., 46 Ga. 43, 12 Am. Rep. 585; N. W. Tel. Co., v. Chicago, etc., R. R. Co., 76 Minn. 334, 79 N. W. 315; Atl., etc., Tel. Co. v. Chicago, etc., Ry. Co., 6 Biss. 158, Fed. Cas. No. 632; W. U. Tel. Co. v. Atl., etc., Tel. Co., 7 Biss, 367, Fed. Cas. No. 17,445; W. U. Tel. Co. v. Amer. Tel. Co., 9 Biss. 72, Fed. Cas. No. 17,444; Louisville, etc., R. R. Co. v. Postal Tel. Co., 68 Miss. 806, 10 South. 74; Baltimore, etc., Tel. Co. v. Morgan's, etc., Ry. Co., 37 La. 883; S. E. R. R. Co. v. European, etc., Elec. Tel. Co., 9 Exch. 363; Lewis on Eminent Domain (2d Ed.) § 141a; 27 Amer. & Eng. Ency. Law (2d Ed.) 1012; Jones on Telegraphs and Telephones, 143, 145, 146, 147. This proposition being true, the railroad company may construct and maintain such telephone or telegraph line on the right of way for its own purpose, or it may take a partner into the enterprise, or contract with another to erect and maintain the line and furnish the required telephonic or telegraphic service to the end of transmitting intelligence with respect to the operation of its trains, carriage of traffic, passengers and other needs of its calling. In such circumstances the telephone is not an additional servitude upon the fee of the adjacent owner, but, on the contrary, it is viewed as a legitimate development of the easement acquired for railroad purposes. W. U. Tel. Co. v. Rich, 19 Kan. 517, 27 Am. Rep. 159; M. & O. Ry. Co. v. Postal Tel. Co., 101 Tenn. 62, 46 S. W. 571, 41 L. R. A. 403, 406; Amer. Tel. Co. v. Pearce, 71 Md. 535, 541, 542, 18 Atl. 910, 7 L. R. A. 200; Taggart v. Newport Street Railway Co., 16 R. I. 668, 19 Atl. 326, 7 L. R. A. 205; Hodges v. W. U. Tel. Co., 133 N. C. 225, 45 S. E. 572; Lewis on Eminent Domain (2d Ed.) § 141a; 27 Amer. & Eng. Ency. Law (2d Ed.) 1011, 1012; Jones on Telephones and Telegraphs, §§ 146, 147. It therefore appears that the Cape Girardeau & Chester Railway Company, having obtained the right to cross the plaintiff's depot grounds and right of way by virtue of the condemnation proceedings, obtained the right as well to establish a telephone...