St. Louis, Iron Mountain & Southern Railway Co. v. Batesville & Winerva Telephone Co.

• Decision Date: 05 November 1906
• Citation: 97 S.W. 660,80 Ark. 499
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BATESVILLE & WINERVA TELEPHONE COMPANY
• Court: Arkansas Supreme Court

97 S.W. 660

80 Ark. 499

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BATESVILLE & WINERVA TELEPHONE COMPANY

Supreme Court of Arkansas

November 5, 1906

Appeal from Izard Circuit Court; John W. Meeks, Judge; reversed in part.

The Batesville & Winerva Telephone Company sued the St. Louis Iron Mountain & Southern Railway Company and the Western Union Telegraph Company in tort. The first count alleged that plaintiff was engaged in the telephone business, owning and operating a telephone line in Independence, Izard and Baxter counties, Arkansas, running along the east bank of White River and upon its own right of way; "that in 1901 and 1902, while laying and constructing the said railway and telegraph line of defendants, the said defendants unlawfully wilfully and intentionally cut down, tore down and destroyed a large number of telephones poles and wires where same touched the right of way of said railway company." A second count charged "that in the latter part of 1903 defendants wilfully and intentionally cut down, dug up and removed all of plaintiff's poles and wires that were located on defendant's right of way in the counties of Baxter and Izard running from Cotter to Penter's Bluff in Independence County." The total damages asked were $ 17,000.

The joint answer of the defendants denied (I) that the plaintiff's poles or wires were destroyed or torn down by either of them in 1901 or 1902, or that plaintiff was damaged in any sum by the acts of defendants; that if any damage was done to plaintiff in 1901 or 1902 it was done by the White River Railway Company, its contractors and subcontractors who were independent contractors for whose acts defendants were not responsible. (2) Defendant, admitted that during 1903 defendant railway company purchased and secured all the rights and privileges of the White River Railway Company, and that; having purchased an exclusive right of way, it removed certain telephone poles and wires of plaintiff from its right of way, after giving due notice to plaintiff to remove same. It further alleged that plaintiff's poles were erected over the White River Railway Company's right of way, and that by purchase defendant railway company became entitled to exclusive use of same; that plaintiff's poles and wires crossed the railway track in many places, and was unskillfully constructed, was a menace to the safe operation of said railway, to such an extent that it interfered with the operation of the railway.

Farris president of plaintiff telephone company, testified that plaintiff owned the telephone line erected between Penter's Bluff and Sylamore on the summer of 1901 before the railway was constructed. The public road was followed closely, and verbal consent was given to lay the line over private property. In December, 1903, the plaintiff's poles and wires were removed from defendant's right of way, thereby destroying the use of the line. Thirteen miles were taken down, and plaintiff abandoned the route. Plaintiff was damaged at the rate of $ 40 per mile, or $ 520. The loss of rents about $ 145, with cost of rebuilding, amounted to $ 957. The line was constructed high above the track, was never low enough to strike a brakeman on a box car. Witness admitted that plaintiff's wires crossed the railroad track in a number of places.

The court submitted the following questions to the jury, viz.: (1) "Do you find that the act of cutting the poles and wires of the plaintiff telephone company by the defendants was done wilfully and intentionally?" (2) "Do you find that the railroad company cut the poles and wires in good faith, believing that they endangered the safety of the employees of the railroad?"

The first question was answered by the jury in the affirmative, and the second in the negative. The jury found the actual damages to be $ 600. On motion of plaintiff the court rendered judgment for $ 1200, double damages, against defendants.

Defendants have appealed.

Judgment reversed and affirmed.

B. S. Johnson, for appellant.

1. The verdict was contrary to the evidence.

2. Plaintiff was not entitled to double damages. The act, § 1899, Kirby's Digest, is a criminal statute, and the words "wilfully and intentionally," as used in this statute, were intended to mean more than simply the doing of a thing voluntarily and knowingly. 96 U.S. 699; 20 Pick. 222; 1 Bishop, Crim. Law, § 428; 155 U.S. 446; 174 U.S. 736; 49 S.W. 99; 30, Am. & Eng. Enc. Law, 529; 91 Ia. 146.

3. The court erred in refusing to permit the defendant to introduce in evidence the records of Izard County vacating certain roads, and therein permitting the plaintiff to introduce parol testimony controverting those records and to show that they were void. 33 Ark. 893; 4 Ark. 129; 7 Ark. 252.

John B. McCaleb, and Bradshaw, Rhoton & Helm, for appellee.

1. The verdict is sustained by the evidence. It is in proof that the appellee's telephone line was in operation before appellant had any right of way. There is no proof that appellant filed a preliminary survey, or a profile with the county clerk as required by law. Kirby's Digest, §§ 6548, 2942, 6569. Before a railroad company can construct its line of road, it must procure a right-of-way, either by contract or by condemnation proceedings. If appellee's right of way lay along what appellant desired, it was its duty to condemn that also. Ib. § 2939. The law gives telephone companies a right of way along that of railway companies. Ib. §§ 2934-36. In any event the telephone company had an easement over the lands where its line ran, and this was subject to condemnation. 15 Cyc. 607 and 699.

2. Plaintiff was entitled to double damages when the jury found that the defendant wilfully and intentionally caused the damage. Kirby's Digest, § 1899.

Plaintiff was in possession when appellant bought, and the latter took subject to plaintiff's rights. 54 Ark. 499; 35 Ark. 391; 37 Ark. 195; 47 Ark. 543; 33 Ark. 465. If the trespass is an aggravated one, or the injury to property be done wilfully or wantonly, or be attended with such gross negligence as to manifest a careless disregard of consequences, the jury may award exemplary damages. 15 Ark. 452; 42 Ark. 321; 41 Ark. 295; 59 Ark. 215; Watson on Damages, §§ 718-19. Such damages could be recovered in this case if it were not for the limitation to double damages contained in the statute.

3. No copies of the alleged records of the county court have been brought into the bill of exceptions. The presumption is that the ruling of the trial court in the matters complained of was correct.

OPINION

HILL, C. J.

1. This was an action by the telephone company against the railroad company for removal by the latter of thirteen 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 can not 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...