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

• Decision Date: 06 July 1914
• Docket Number: 16373
• Citation: 107 Miss. 626,65 So. 650
• Parties: WESTERN UNION TEL. CO. v. LOUISVILLE & N. R. CO
• Court: Mississippi Supreme Court

65 So. 650

107 Miss. 626

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

No. 16373

Supreme Court of Mississippi

July 6, 1914

APPEAL from the chancery court of Jackson county. HON. J. M STEVENS, Chancellor.

Suit by the Louisville & Nashville Railroad Company against the Western Union Telegraph Company. From an order denying a motion to dissolve an injunction, defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, motion to dissolve injunction sustained, and cause remanded.

Harris & Potter, for appellant.

The sole purpose of this bill is to have the judgments of the eminent domain court declared void for the reasons set forth in said bill, and does not raise any question of fact, and therefore this court will determine whether, as a matter of law, the complainant is entitled to an injunction in this proceeding, the sole purpose of the proceeding being to exclude the telegraph company entirely from any use of the right of way by perpetual injunction.

We will now consider the objections to the judgment, set up in the bill in the order in which we have presented them. First, as to the failure of the clerk to endorse his appointment of the justice of the peace upon the application. It will be borne in mind tat it is shown by the bill that the appointment of the justice of the peace was made in writing and filed with the application. In order to fully appreciate the force of this objection, it would be well to consider the statute chapter 43, of the Code of 1906, under which the proceedings were instituted, and the purposes for which the eminent domain court is constituted and the scope of its power and authority. It is perfectly manifest from the most casual reading of the statute that it was the purpose of the legislature to divest the proceedings as far as possible of all mere technical and formal matters relating to the procedure. Vinegar Bend Lumber Co. v. Oak Grove, etc Railroad Co., 89 Miss. 84.

Even in eminent domain, statutes which are not expressly to be liberally construed in matters of form and procedure, as our statute, is, it is held that a substantial compliance with the statute is all that is required. See Lewis on Eminent Domain (3d Ed.), 1077; 24 Wendell, 367; 45 Hun, 310.

Second the second objection to the proceedings, is equally without merit. It is urged that the letter of the statute required the application to be presented to the clerk of the circuit court of the county, and that the clerk shall issue the writ etc., and because in two of the cases the writs, etc., being issued by the deputy clerks, were void and vitiated the whole proceeding. Section 1006, Code of 1906, provides for the appointment of deputy clerks in the supreme, chancery and circuit courts, "who shall take the oath of office, and who shall, thereupon, have the power to do and perform all of the acts and duties which their principals may do and perform."

Third, the third point is that the telegraph company did not have the power or authority to condemn the railroad right of way because it was property already devoted to the public use. We submit that the right of the telegraph company to condemn the rights of way of railroad companies in the state of Mississippi is conclusively settled in the case of Cumberland Tel. & Tel. Co. v. Y. & M. V. R. R. Co., 90 Miss. 686, in which case this question was most elaborately considered.

Fourth, it is claimed that the judgments are void and should be cancelled as a cloud on complainants' title because the statutes of this state only authorize telegraph companies to exercise the power of eminent domain for the purpose of constructing new lines, and that in fact it is not the purpose of telegraph company to construct new lines as alleged in its applications, and authorized by the judgments, but to attempt to maintain existing lines.

By what process of reasoning the complainant arrives at the conclusion that judgments are void because the telegraph company might undertake to do something which was not authorized by these judgments, we must confess we are unable to understand. The validity of the judgment is one thing. What the telegraph company might undertake to do under that judgment is quite another thing. In the case of M. & O. R. R. Co. v. Postal Tel. Co., 76 Miss. 731, this court held, at pages 752 and 753, that these stipulations contained in the application were valid and enforceable.

By the chapter on Eminent Domain, section 1872, the Code of 1906, the whole record is required to be filed in the office of the clerk of the circuit court and remain there as a record thereof, and as such subject to be filed by any person interested and recorded in the records of the deeds of the county. In other words, the application together with all of the proceedings, down to and including the judgment, constitutes the title of the party condemning, and is the charter of its rights, defining and limiting them, and it is to this the court must look in determining whether the judgments rendered are valid or invalid, and not to any mere allegation in the bill as to what might be done by the telegraph company. In other words, in determining the question here as to whether or not the judgment is or is not void, the court must look to the proceedings themselves which were made parts of the bill, and these proceedings as set forth must control. This is a universal rule of law. See 16 Cyc. 237; 8 Ency. Pl. & Pr., p. 741, note 1; Frieberg v. Magold, 70 Tex. 116; 1 Beach on Equity Proceedings & Practice, 229; 31 Miss. 63; 64 Ill.App. 239; 30 Ill.App. 17; 97 Md. 725; 40 W.Va. 553; 122 F. 363.

What the telegraph company might want to do under the judgment, and what it is authorized by law to do, are entirely different things and depend upon different considerations. The court must look to the applications and to the judgments which were rendered, to determine the validity of the judgments and cannot consider the conjectures of the complainants as to what might be done by the telegraph company in violation of the right conferred by the judgments.

In considering the matter of anticipating or taking into consideration by way of anticipation, in the condemnation proceedings, the suggestion that the telegraph company might act in violation of law, or the rights conferred by the judgments or in violation of the stipulations upon which the condemnation proceedings are had, we direct the court's attention to the following cases, which will be found instructive: Mobile & Ohio R. R. Co. v. Postal Tel. Co., 76 Miss. 739; Texas Railroad Co. v. S.W. Tel. Co., 77 S.W. 321; Postal Tel. Co. v. Oregon Railroad Co., 23 Utah 474; Mobile & Ohio R. Co. v. Postal Tel. Co., 120 Ala. 21; Mobile & Ohio R. Co. v. Postal Tel. Co., 101 Tenn. 62; Atlantic Railroad Co. v. Postal Tel. Co., 120 Ga. 269-280; St. Louis R. R. Co. v. Postal Tel. Co., 173 Ill. 508; Postal Tel. Co. v. Louisiana Western R. Co., 49 La. App. 1270; Chicago R. Co. v. Chicago, 166 U.S. 226; Georgia R. Co. v. Postal Tel. Co., 152 F. 991; Davis v. Y. & M. V. R. Co., 73 Miss. 678. The purpose of citing these cases and the rule from Cyc., is to make it clear that in condemnation cases the presumption is, that those things alone will be done which are lawful to be done and permissible under the applications and judgments rendered, and the proceedings cannot be delayed or thwarted by conjectures or suggestions that the condemning party will act in an illegal manner, will not act in accordance with the terms of the judgment or the stipulations contained in the application.

Redress for all of these matters is ample should the occasion arise. The rules which we have set forth are of universal application and if these matters cannot be considered in a condemnation proceeding, certainly the court would not hold the judgment void because the landowner suggested that the plaintiff, in the condemnation proceeding, would not abide by its terms. This, as we have said before, is not a bill to enjoin a threatened injury to the plaintiff arising from the doing of an unlawful act. In other words, it is not in the nature of a bill qui timet.

It is settled in this state that equity will not relieve if the "injury complained of is doubtful, eventual or contingent." Green v. Lake, 54 Miss. 564. "It is not enough to show probable or contingent injury, but it must be shown to be inevitable and undoubted." CAMPBELL, J., in McCutchen v. Blanton, 59 Miss. 122. See, also, High on Injunctions (4th Ed.), secs. 22 to 34, inclusive. Id., sec. 832.

Fifth and sixth, it is claimed in the bill that the judgments are void: (a) Because to enforce them against complainant would be violative of the commerce clause of the Constitution of the United States, and would deprive complainant of its property without due process of law; because complainant has a right under its charter to erect telegraph lines and to operate the same; and because, before the institution of the condemnation proceedings, its right of way was and is devoted to the public use by complainant for the purpose of construction and maintenance thereon, should the necessity therefor arise, of a telegraph line; and because it has accepted the provisions of the Act of Congress approved July 24, 1866, entitled "An act to aid in the construction of telegraph lines, and to secure to the Government the use of the same for postal, military, and other purposes"; and because, at the expiration of the contract with the Western Union, it, the complainant, contemplates operating a line over its right of way in Mississippi, and that the maintenance by the telegraph company of the telegraph line over the right of way in Mississippi would interfere with the use of said right of way by the complainant. (b) And...