W.U. Tel. Co. v. Pennsylvania R. Co.

• Decision Date: 14 January 1903
• Docket Number: 89.
• Citation: 120 F. 981
• Parties: WESTERN UNION TEL. CO. v. PENNSYLVANIA R. CO. et al.
• Court: U.S. District Court — District of New Jersey

120 F. 981

WESTERN UNION TEL. CO. v. PENNSYLVANIA R. CO. et al.

No. 89.

United States Circuit Court, D. New Jersey.

January 14, 1903

John F Dillon, Henry D. Esterbrook, Rush Taggart, and R. V Lindabury, for complainant.

John G Johnson, James B. Vredenburgh, and Robert L. Lawrence, for defendant.

KIRKPATRICK District Judge.

Two suits have been brought in this court-- the one at law to condemn lands of the defendant company sufficient for the construction, maintenance, and operation of the telegraph lines of the complainant, the Western Union Telegraph Company, under and in accordance with the provisions of a certain act of the Congress of the United States passed July 24, 1866 (14 Stat. 221); and the other in equity to restrain the defendant from interfering with the telegraph lines of complainant now erected upon and along defendants' right of way until the question of the complainant's right to condemn the said lands upon the payment of compensation has been determined by the court.

It appears by the record that the complainant company has maintained its telegraph poles and lines upon the right of way used by the defendant for more than 40 years, and that on September 20, 1881, an agreement was entered into between the complainant and defendant companies, to continue for 20 years from that date, in and by which, for the rent therein reserved, the said defendant company granted to said complainant company a right to place, maintain, and use upon the right of way of the Pennsylvania Railroad Company, and the roads owned, operated, or leased by it, a single line of telegraph poles, and to maintain thereon such wires as the telegraph company might from time to time elect. The said agreement also contained this provision:

'If no new agreement be made by the parties hereto, the telegraph company shall at the termination of this contract, or at any time thereafter, upon receiving written notice from the railroad company, remove within six months from the receipt of said notice all of its poles and wires and leave the property of the railroad company in good condition and free from the encumbrance thereof to the satisfaction of the general manager or other proper officer of the railroad company, and if not so removed the railroad company may remove them at the expense of the telegraph company.'

In accordance with this provision, and after it had been determined that they would not renew the contract, the railroad company, on the 15th day of May, 1902, gave notice to the telegraph company that it must remove its poles and wires from their right of way on or before December 1st then next ensuing, and that if it failed so to do the railroad company would cause them, under the clause of the contract above referred to, to be removed. The bill recites (and the allegation is substantiated by affidavit) that the wires which are strung over and upon the defendants' right of way are a part of a main trunk line, used by them in the interchange of communications for public and commercial purposes between people dwelling in different states of the Union; that their destruction would seriously interfere with such communication; that the lines have been erected at great cost, and that their worth in their present conditions is in the neighborhood of $350,000; and that if the wires should be removed from the poles on which they are strung, and the poles cut down, their value would be less than $50,000. It is alleged that under this condition of affairs the pecuniary loss which would be inflicted upon the complainant by the destruction of its poles and wires, and the inconvenience entailed upon the general public, would be very great. Not only the injury would be one which, should the right which the complainants claim exist, they ought not to be required to suffer, but one for which there could be no adequate pecuniary recovery.

Upon this statement of facts, the complainant asked that the defendant company be restrained from removing its poles and wires from its (the defendant company's) right of way, in accordance with the strict terms of the contract, until their right of condemnation could be heard and determined; and the court granted a rule to show cause why such preliminary injunction should not issue according to the prayer of the said bill, which said rule now comes on to be heard.

Upon the case now presented, it appears that on July 24, 1866 (14 Stat. 221), Congress enacted that:

'Any telegraph company now organized or which may hereafter be organized under the laws of any state, shall have the right to construct, maintain and operate telegraph lines * * * over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law * * * but such lines of telegraph shall be so constructed and maintained as not to * * * interfere with the ordinary travel on such military or post roads.'

That act further provided that, before any telegraph company should exercise any of the powers or privileges conferred by the act, such company should file its written acceptance with the Postmaster General of the restrictions and obligations required by the act.

This act, the bill alleges, was accepted by the complainant company on the 8th day of June, 1867, and since that time the complainant company has conducted its business in accordance with such restrictions and obligations.

All railroads of the United States are by law declared to be post roads (Rev. St. Sec. 3964; 23 Stat. 3 (U.S. Comp. St. 190...