The Sw. R.R. Co. v. The Southern And Atl. Tel. Co.

• Decision Date: 31 July 1872
• Citation: 46 Ga. 43
• Parties: THE SOUTHWESTERN RAILROAD COMPANY et al., plaintiffs in error. v. THE SOUTHERN AND ATLANTIC TELEGRAPH COMPANY, defendant in error.
• Court: Georgia Supreme Court

46 Ga. 43

THE SOUTHWESTERN RAILROAD COMPANY et al., plaintiffs in error. v. THE SOUTHERN AND ATLANTIC TELEGRAPH COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Injunction. Constitutional law. Eminent domain. Compensation. Before Judge Cole. Bibb County. At Chambers, September 13th, 1872.

The Southwestern Railroad Company and the Western Union Telegraph Company filed their bill against the Southern and Atlantic Telegraph Company, containing substantially the following allegations: That on November 16th, 1865, the Southwestern Railroad Company entered into a written contract with the American Telegraph Company, (which has since been merged in the Western Union Tele-graph Company,) by which said railroad company granted unto said telegraph company the exclusive right to put up a telegraph line or lines on the land, and along the road, of said railroad company, said company agreeing to transport along its railroad, free of charge, the materials and men of the telegraph company engaged in the business ofsaid company, so long as said telegraph company should observe its respective *obligations; and said telegraph company agreeing to put up and maintain a first-class telegraph line or lines along the route of the said railroad within six months after the date of the contract, and to supply one wire for the special use of the railroad company; to put up, without charge, the necessary telegraph apparatus for certain stations of said railroad company, and to transmit free of charge to all stations throughout the United Slates, where said telegraph company shall have offices, such messages as are usually sent by telegraph by the officers and agents of said railroad company; that the aforesaid contract was made for the mutual benefit of the railroad company and the telegraph company; that the telegraph company, relying upon the provisions of said contract, has, at great cost and expense, constructed said telegraph line and carried out all of its obligations; that the defendant, claiming to have been incorporated under the laws of the State of New York sometime in the year 1869, has, without the consent of the complainant, the Southwestern Railroad Company, against its protest, in violation of the aforesaid contract, projected a line along said complainant\'s road, and have already put in their places poles upon which to place the wires, the distance of twenty-five miles or more from Macon, in the direction of Columbus, and is now actively engaged in the completion and construction of said line; that if defendant is permitted to put into operation said intended, projected telegraph line, it will effectually defeat the grant of the exclusive right by the Southwestern Railroad Company to the telegraph company, and defeat the great benefits accruing to the railroad company under that contract; that defendant has no authority of law to infringe on the private property of the railroad company; that all of corporators of defendant reside out of the State of Georgia, and have no property in said State beyond its line of wire, battery and office fixtures, of small and insignificant value, wholly inadequate under any circumstances to protect, indemnify and compensate complainants, forthe intended invasion of their rights and property; that said defendant has *an office in the city of Macon, county of Bibb, occupied by a superintendent of the projected and intended telegraph line—one W. S. Morris. Prayer: that the writ of injunction may issue, restraining defendant from any further work on said projected telegraph line until the further order of the Chancellor; that the writ of subpoena may issue.

Complainants amended their bill substantially as follows: That the right of way of said railroad company covers a strip of land on each side of its track extending seventy-five feet from the centre, the whole length of said railroad belonging to said railroad company, absolutely and in fee, acquired by said company, by purchase, donation and otherwise; that said company, at great expense and labor, cleared said strip of land of all its trees and other obstructions, and annually, at great cost and expense, continued to keep it clear of trees, etc.; that the appropriation of said land by defendant for a telegraph line, without compensation to the railroad company, not for the public use, but for the private use of said defendant, is illegal and unauthorized.

The answer of defendant, among other defenses unnecessary to an understanding of the decision of the Court, set up an Act of the General Assembly of the State of Georgia, approved August 26th, 1872; entitled "An Act to empower and authorize telegraph companies in this State to construct their lines upon the right of way of the several railroad companies in this State."

The injunction was refused by the Chancellor, and complainants excepted and assign said ruling as error.

Lyon & Irvin, for plaintiffs in error.

1. The acts of the Southern and Atlantic Telegraph Company are wholly illegal, and without authority of law, being a corporation existing and acting only under the laws of New York; such laws have noforce or authority in the State of Georgia. Its incorporation gave it no right to do business in *this State: Story v. Conflict of Laws, secs. 22-29, 32-35, 73, 102; Blanchard v. Russell, 13 Mass. R., 4; Saul v. his Creditors, 17 Martin\'s R., 595-6; The Bank of Augusta v. Earle, 13 Peters, 589. As to extent of recognition by this State: See Code, sec. 1679. 2. The right of eminent domain is inherent to the several States, and not to the United States: Pollard v. Hagan, 3 How. U. S., 212. And under this right the State may take the private property of individuals for public use, upon just compensation being made: Calder v. Bull, 3 Dallas, 400; Bonaparte v. Camden and Amboy Railroad, Baldwin\'s Cir. R., 205-239; Chesapeake and Ohio Canal Co. v. Key, 3 Cr. C. C., 599; Baltimore and Ohio R. R. v. Van Ness, 4 Cr. C. C, 595; Barron v. Baltimore, 7 Peters, 243; Young v. McKenzie, et al., 3 Kelly, 31; Mims v. Macon and Western R. R. Co., 3 Kelly, 333; Parham v. The Justices, etc., 9 Ga., 341. 3. A franchise of a corporation may be taken in the same way, but compensation must be made for the franchise as well as all other property taken: White River Bridge Co. v. Vermont Central R. R. Co., 21 Vt. R., 590; West River Bridge Co. v. Dix, 6 Howard, 507; Mills v. St. Clair county, 8 Howard, 560; Richmond, Frederick and Potomac R. R. Co. v. Louisa R. R., 13 Howard, 71. 4. An Act of the Legislature appropriating private property to a public use, without adequate compensation, is unconstitutional and void. Parham v. The Justices, etc., 9 Ga., 341. 5. Until this compensation is made, or tendered and refused, as provided by the charter, the property cannot be appropriated. Young & Calhoun v. Harrison, 6 Ga., 157, et passim. 6. The right of way or land of the Southwestern Railroad is held in fee, is a part of its corporate property and franchise, and necessary for its use, existence, etc. See Charter, Pamphlet Acts 1845, page 132, section 3. 7. A highway or street, dedicated to public use as such, cannot be appropriated to other use without compensation. Thatcher v. Auburn and Syracuse Railroad, 25 Wend., 462; Presbyterian Society in Waterloo v. Auburn and Rochester Railroad, *3 Hill, 507; Williams v. The N. Y. Central R. R., 2 Smith, 1 N. Y., 97; Wager v. Troy & Union R. R., 25 N. Y. Rep., 526. 8. The injury com-plained of here is not a mere temporary trespass, but a continued one; a lawless appropriation of the property; a destruction of the inheritance, for which the law affords no adequate relief or compensation. In all such cases a Court of equity has jurisdiction, and injunction is the only appropriate, adequate and complete remedy, and is universally entertained and allowed: 2 Story\'s Equity Jur., secs. 925, 927, n. 4; Bonaparte v. Camden & Amboy R. R. Co., 1 Baldwin\'s Cir. Rep., 226, 231; Mohawk & Hudson River R. R. v. Archer, 6 Paige, 83; Belknap v. Belknap, 2 John\'s Ch., 463; Livingston v. Livingston 6 John\'s Ch., 497; Jerome v. Ross, 7 John\'s Ch., 315; The Binghampton Bridge, 3 Wall\'s U. S., Rep., 51, et passim. 9. When the appropriation is authorized by the Legislature, equity will enjoin until compensation is made: 1 Baldwin\'s C. Rep., 226. 10. Whether the Western Union Telegraph Company is a proper party or not, the right of the Southwestern Railroad to the injunction is perfect. 11. Congress has no authority or power to interfere in the matter, for the right is with the State and not the United States—not even as a regulation of commerce—for that power has never been held to include the means by which commerce is carried on within a State: The Passaic Bridge, 3 Walls, 782. 12. Laws with respect to roads, ferries, etc., are not within the power of Congress to regulate commerce —Corfield v. Coryell, 4 Wash. C. C, 371—but are reserved to the States: Conway v. Taylor\'s Ex\'rs, 1 B1., 604; United States v. The James Morrison, Newb., 241; The United States v. The William Pope, Newb., 256. 13. The answer does not in fact exhibit any property whatever that would be available for compensation.

*A. O. Bacon, for defendant.

1. There is a misjoinder of parties in the bill; the Western Union Telegraph Company is not a proper party to the bill, and the Judge below was right in so deciding.

(a) This is a bill filed to enjoin an alleged trespass. The right to bring such a bill only belongs to the person who has the title to, or right of possession and enjoyment, in the particular property upon which the trespass is being or about to be committed. Morris v. McCamey, 9th Ga., 160; Colquitt et al. v. Howard, 11th Ga., 786; Jones v. The Water Lot Co., 18th Ga., 539.

(b) The Western Union has shown no right to the benefits of the contract with the American Telegraph Company. The contract exhibited fails to show the required vote of the board of...