State v. Cumberland Telephone and Telegraph Co.

• Decision Date: 01 May 1900
• Docket Number: 13,223
• Citation: 52 La.Ann. 1411,27 So. 795
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA ET AL. v. CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY

27 So. 795

52 La.Ann. 1411

STATE OF LOUISIANA ET AL. v. CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY

No. 13,223

Supreme Court of Louisiana

May 1, 1900

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- Theard, J.

Milton J. Cunningham, Attorney General, (Branch K. Miller of Counsel), for Plaintiffs, Appellants.

Denegre Blair & Denegre, for Defendant, Appellee.

OPINION

BREAUX J.

Plaintiffs sought to have telephone poles removed which the defendant has erected within about one hundred and twenty feet of the centre line of the new basin canal.

The history of the title of the State, for the purposes of this suit dates back to March 5th, 1831, at which time a statute of incorporation was enacted by the Legislature, incorporating the subscribers to the New Orleans Canal and Banking Company and by Section 8 of the statute authorizing the company to construct a canal of the width of sixty feet at the top of the water, and of sufficient depth to admit vessels drawing six feet of water.

At the expiration of thirty-five years after its passage, by Section 26 of the statute, the property of the canal and road, to the extent of one hundred and twenty feet, on each side of the canal, became vested in the State of Louisiana.

Under Statute 144 of 1888, a board of control has the general management of the canal and shell road.

The complaint of plaintiffs is, that about February 1st, 1894, the "Great Southern Telephone and Telegraph Company", without authority from any one, established along the west side of the canal, a line of telegraph wires, extending from the intersection of the canal with Claiborne street, to a place near Metairie Ridge.

That in 1898, about May, the Cumberland Telephone and Telegraph Company succeeded to all the rights and privileges of the Great Southern Telephone and Telegraph Company and assumed all of its liabilities and responsibilities, and that in consequence of the former's use of the property and of its assumption of responsibility, it is indebted to the plaintiffs in the sum of six hundred dollars a year, or in a total of twenty-seven hundred and seventy-five dollars; that recently the company has undertaken to locate additional poles and erect new lines, and has cut trees and made excavations upon the property.

Plaintiffs sued out an injunction before the District Court to enjoin and restrain the Cumberland Telephone and Telegraph Company from erecting any poles or constructing any lines of telephone wire, or from making any excavations, cutting any trees on the property and asked judgment in the sum before stated for the use of the property.

The defendant joined issue with plaintiffs, and here urges that the Statute 124 of 1880 was sufficient authority for locating as it has, its telephone lines over plaintiff's lands, and avers that it has not violated the condition of the State concession by interfering with the ordinary use of the canal and shell road.

If the decision be against defendant on this point, then the defendant contends that the State and the canal board permitted the telephone company to erect its poles and establish its line on plaintiff's land, and that it is not possible after acquiescence, as alleged, for the State to recover compensation for the use alleged.

And lastly, defendant argues that the value to the State of the very limited space occupied by its poles and wires is very slight.

Before taking up the argument, we desire to state, that Section 696 of the Revised Statutes contains a provision under which telegraph companies may construct and maintain telegraph lines over State land; and this article was amended by Statute 124 of 1880, enlarging the permission, so as to include telephone companies within its terms.

The amended statute contains a provision, part of which sets forth, that in the event of the failure of a company, on application, to secure the needed right of way upon just terms, then the company may expropriate the right of way.

The judge of the District Court decided against plaintiffs, the State of Louisiana and the Board of Control of the New Basin Canal and Shell Road, rejecting plaintiff's demand and dissolving the writ of injunction, herein issued, without damages.

From the judgment, plaintiffs prosecute this appeal.

We have read plaintiff's brief, and we did not find anything in it indicating that plaintiffs insist on that portion of their petition which asks for relief by injunction, nor have we discovered that the complaint about excavating works and the cutting of trees of plaintiffs, is insisted upon. The evidence any way would not sustain the insistence.

1st. In answer to defendant's claim to a right of way allowed by the statute to which we have referred supra, plaintiffs contend that the lands referred to in the statute as land over which defendant's line may be constructed are the public lands of the State, and not property devoted to a particular use under her laws.

The words "State lands", as used in the article of the Revised Statutes and in the amending act, are broad enough, as we construe them, to embrace the State lands adjacent to the new basin canal. We have not found that these words include only "public lands" open to settlement or subject to sale as "public lands" by the government.

We take it, that the terms of the law denote the intention to use the words in a broad, and not in a strict sense.

The land along this canal, we understand, can well be used by this company without interfering with the use of it which the State makes. Non-interference with the State's use is the condition.

It may well be said that there are lands appropriated by the State, for purposes which the companies would have to respect, even though they did not interfere with the State's use.

It is true, as contended by plaintiffs, that land reserved for any purpose, ceases to be a part...