W.U. Tel. Co. v. Louisville & N.R. Co.

• Decision Date: 28 December 1912
• Citation: 201 F. 946
• Parties: WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO.
• Court: U.S. District Court — Western District of Kentucky

201 F. 946

WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO.

United States District Court, W.D. Kentucky.

December 28, 1912

A. E Richards and A. P. Humphrey, both of Louisville, Ky., for complainant.

Henry L. Stone, Helm Bruce, and Albert S. Brandeis, all of Louisville, Ky., for defendant.

EVANS District Judge.

From the very interesting and helpful argument of the motion for a temporary injunction the court has not only derived much benefit, but has found that a great deal could be said upon both sides of certain of the propositions discussed.

An action was brought in this court on the 9th day of July 1912, for the condemnation of certain property of the Railroad Company to the uses of the Western Union Telegraph Company. It was contended at the hearing of various demurrers in that action that the law of Kentucky on which that action was based is unconstitutional and void, but the court held that this contention was not maintainable upon any ground. The court expressed in that case the view that the one dominant question was: What is the reasonable and fair compensation to be paid to the defendant for the property which, in the language of the Kentucky Statute (Ky. St. Sec 4679a), was 'desired' by the Telegraph Company for its purposes-- purposes which the state of Kentucky had decided to be the public ones? At this stage and in aid of the other suit, this action was brought, and the pending motion was made for the purpose, broadly stated, of preserving the present status while the question of just compensation was being litigated.

We will consider the motion from two standpoints, namely: First, as it bears upon defendant's property in Kentucky, to which the previously brought suit applies; and, second, as it bears upon the defendant's conduct respecting property outside this state.

1. As to Property in Kentucky.

The affidavits read at the hearing certainly cover a very wide range, but we have not been impressed with the conviction that a great part of what they contain is instructively applicable to any question involved in the motion now under consideration. As we view the first of the questions we have stated it is neither complex nor difficult. Indeed, it appears quite simple.

Acting under an agreement made with the Railroad Company over 25 years ago, the Telegraph Company from time to time at great expense installed upon defendant's right of way throughout Kentucky a large portion, to wit, about 1,500 miles, of its telegraph system. Under the same agreement the Telegraph Company has also, in actual and physical connection with its lines in this state, installed in other states upon rights of way of the defendant some 3,250 miles of its system. The system thus installed consists of continuous wires strung upon poles put in the ground probably about 160 feet apart. Various instruments and structures upon and along the lines of railway have been placed where necessary. The general character and appearance of complainant's plant is well known. Some months ago the contract between the parties pursuant to the manner it prescribes was terminated, and the parties have not been able to agree upon another arrangement nor as to the compensation to be given the defendant in the event any of its property should be taken. This condition, when reached, found all the poles, wires, apparatus, and structures actually remaining upon the Railroad Company's rights of way throughout Kentucky and various other states at the moment the contract terminated, and not only so, but all were then in active use and operation and apparently indispensable to the defendant as well as to the complainant. It is difficult to see how the Railroad Company could operate its line without the use for a considerable period of the Telegraph Company's property. Certainly it would have been disastrously inconvenient to the Railroad Company, if, at the precise moment of the termination of the contract, the plant of the Telegraph Company had ceased to be available or operative. In this situation and pending the suit, which seeks to condemn the very property so long in use under the agreement referred to, the Telegraph Company seeks to enjoin the Railroad Company from cutting, removing, or interfering with any part of the Telegraph Company's plant until the result of the condemnation suit shall be ascertained. If that suit shall result in a judgement for the Telegraph Company for the condemnation of the land it desires to take, then its own poles and other apparatus and structures will be ready for use just as they are now, provided reasonable compensation shall have been paid. For the purposes of the pending motion, we think we must assume that any just compensation due the Railroad Company will be ascertained and paid within a reasonable time. We say this because the condemnation action has been brought, and is now being actively prosecuted, and there is nothing in the law of Kentucky which forbids the result indicated. On the contrary, the law of the state expressly authorizes this public utility corporation to do exactly what it seeks to do in that suit. So, assuming that the complainant will acquire a right to the property it seeks to condemn, what will be the situation? If the Railroad Company is permitted in the meantime to remove the complainant's plant from the very ground which may be condemned, the Telegraph Company will be compelled at vast expense to restore it after condemnation shall have taken place; whereas if, pending that suit, the plant is permitted to remain where it is, the Railroad Company will be awarded just compensation for any of its property which may be taken, including probably reasonable compensation for its use pendente lite, and in the meantime the defendant Railroad Company will derive great benefit from the presence of the Telegraph Company's plant on its right of way, for the reason that, in the absence of that plant, there would be serious if not insurmountable difficulties in operating the railroad, as it is obvious that the defendant could not in any short period construct a telegraph plant of its own. So that any removal or destruction of complainant's plant, so far as it is located on defendant's right of way in Kentucky, would be wanton and unnecessary, besides inflicting a damage that would be irreparable because there would be nobody who could well be compelled to make the loss good. There would, it seems to us, be neither justice nor reason in visiting upon complainant a loss of that character.

The suggestion that the defendant may want to devote the very part of its property which complainant seeks to condemn to the construction in the future of a telephone and telegraph line of its own was disposed of in an opinion recently delivered in the condemnation suit, where the defendant, in its answer, made a similar claim under section 1 of the Kentucky act authorizing condemnations by telegraph companies. While for other reasons overruling a demurrer to a paragraph of the answer which, among other things, set up this claim, the court said that in doing so it by no means intended to intimate that it yielded to 'the defendant's contention that the defendant has the first right to choose what part of its right of way shall be taken by the plaintiff or a right to any preference in respect to what it may itself intend hereafter to use for its own telegraph or telephone lines. Our view rather is that no such right or preference exists. The last clause of section 1 of the act does not seem to confer any rights upon the defendant as to a nonexisting telegraph line. The peculiar conditions actually existing in this instance greatly emphasize the view we take. Indeed, there would seem to be no justice in allowing the defendant to exclude the plaintiff from keeping its own poles where they now are when the right of way it has had, and which it desires to hold, shall be fully paid for through this action. The party seeking to condemn appears to be given the right to take what it 'desires,' though this, of course, is subject to the other provisions of the act. That is the object of the suit. The statute does not require that its right to take shall be made subordinate to any purpose of the owner. The important thing is giving the owner compensation for what in fact is taken. The taking of one particular part of a thing may involve greater compensation including greater damages, but it does not otherwise affect or control the right to take what the plaintiff desires.'

At all events, in the peculiar conditions surrounding this case, if this court may be permitted to exercise any discretion, it will be exerted in the direction of maintaining the present status until the condemnation suit shall be finally disposed of. Indeed, this seems to us to be the course dictated alike by common sense and a proper judgment.

What we have so far said applies specifically to that part of complainant's plant which is located in Kentucky.

2. As to Property Outside of Kentucky.

The second of the propositions to be investigated is more difficult, and has been the subject of anxious consideration. In order to its solution, we must remember exactly what the general nature of the entire litigation is. Of course, the nature...