St. Louis, Iron Mountain & Southern Railway Company v. Cape Girardeau Bell Telephone Company

• Decision Date: 15 December 1908
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant, v. CAPE GIRARDEAU BELL TELEPHONE COMPANY et al., Respondents
• Court: Missouri Court of Appeals

114 S.W. 586

134 Mo.App. 406

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant, v. CAPE GIRARDEAU BELL TELEPHONE COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

December 15, 1908

Appeal from Cape Girardeau Circuit Court.--Hon. H. C. Riley, Judge.

Judgment affirmed.

Martin L. Clardy and James F. Green for appellant.

(1) No effort having been made by the telephone company to agree with the plaintiff railway company as to compensation for its property, or the right of the telephone company to occupy it injunction was the proper remedy, and it should have been made perpetual. Lewis on Em. Domain (2 Ed.), sec. 631; Carpenter v. Grisham, 59 Mo. 247; Cook v Ferbert, 145 Mo. 462; Downing v. Dinwiddie, 132 Mo. 92; R. S. 1889, sec. 1272; Rosenberger v Miller, 61 Mo.App. 422; Telephone Co. v. Smith, 71 Md. 535; Spurlock v. Dorman, 182 Mo. 249. (2) The use which the telephone company desired to make of plaintiff's right of way was an additional servitude, and defendant was not authorized to take possession of the property, without making compensation therefor. Telephone Co. v. Irvine, 49 F. 113; Eels v. Telephone Co., 143 N.Y. 133; Dailey v. State, 51 Ohio 348; Telegraph Co. v. Barnett, 107 Ill. 507; Cable Co. v. Eaton, 170 Ill. 513; Nicoll v. Telegraph Co., 42 A. 583; Telegraph Co. v. McKenzie, 74 Md. 36; Kruger v. Telegraph Co., 106 Wis. 96; Kester v. Telegraph Co., 108 F. 926; Bronson v. Telegraph Co. (Neb.), 93 N.W. 201.

Oliver & Oliver for respondents

(1) It is a proper use of its right of way for a railroad company to erect a telephone or telegraph line thereon or to permit a line to be erected thereon by a telegraph company for the joint use of both companies, the only restriction being that the contract must not be exclusive and in restraint of trade. Telegraph Co. v. Rich, 19 Kan. 517; Telephone and Telegraph Co. v. Smith, 7 L.R.A. 200, 71 Md. 535; Railroad v. Telegraph Co., 53 Ala. 211; Telegraph Co. v. Telegraph Co., 65 Ga. 160; Telegraph Co. v. Steamship Co., 37 La. Ann. 883; Lewis, Em. Domain, sec. 355. (2) The erection of telegraph or telephone poles is not an additional servitude on the land for which the owner of the fee is entitled to additional compensation. Julia Building Assn. v. Telephone Co., 88 Mo. 258; Gay v. Telephone Co., 12 Mo.App. 485; St. Louis v. Telephone Co., 96 Mo. 629; Seibert v. Railroad, 188 Mo. 672, approving above; McCann v. Telephone Co., 69 Kan. 210, 76 P. 870, 66 L.R.A. 171; Magee v. Overshiner, 150 Ind. 127, 40 L.R.A. 370, 65 Am. St. Rep. 358, 49 N.E. 951; Cater v. Telephone Co., 60 Minn. 539, 28 L.R.A. 310, 51 Am. St. Rep. 543, 63 N.W. 111; People v. Eaton, 100 Mich. 208, 59 N.W. 145; Coburn v. Telephone Co., 156 Ind. 90, 52 L.R.A. 671, 59 N.E. 324; Irwin v. Telephone Co., 37 La. Ann. 63; Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7; Hershfield v. Telephone Co., 12 Mont. 102, 29 P. 883; Telephone Co. v. Keesey, 5 Pa. Dist. 366; Lockhart v. Railroad, 139 Pa. 419, 21 A. 26; Kirby v. Telephone Co., 17 S.D. 362, 97 N.W. 3. (3) The compensation for the additional servitude, if there be any, can only be recovered by the owner of the fee. Telephone Co. v. Smith, 71 Md. 535, 7 L.R.A. 200, note; Telephone Co. v. Williams, 8 L.R.A. 429; Constitution of Mo., art. II, sec. 21; Railroad v. Clark, 121 Mo. 180. (4) "Substantial and positive injury or damage must always be made to appear to the satisfaction of a court of equity before it will grant an injunction, and acts which, though irregular and unauthorized, can have no injurious result, constitute no ground for the issuing of or sustaining injunction." 1 High on Inj. (2 Ed.), pp. 8, 9; Schuster v. Myers, 148 Mo. 429; McKinzie v. Mathews, 59 Mo. 99; Rodgers v. Railroad, 28 Barb. 539; Head v. James, 12 Wis. 641; Bank v. Fresno C. & I. Co., 53 Cal. 201.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

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 gauge railroad in and through the city of 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 gauge 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 southwest 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, Revised Statutes 1899 (sec. 1035, Mo. 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 twenty-five 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 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., Railroad Co. v. Clark, 121 Mo. 169, 25 S.W. 192; Boyce v. Mo. P. Railroad Co., 168 Mo. 583, 68 S.W. 920.]

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 numerous and sound in principle. [...