Western & A.R. Co. v. W.U. Tel. Co.
| Citation | 75 S.E. 471,138 Ga. 420 |
| Parties | WESTERN & A. R. CO. v. WESTERN UNION TELEGRAPH CO. |
| Decision Date | 11 July 1912 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
A telegraph company may condemn a right of way on and along the right of way of a railroad company, when the proposed line of telegraph will be so constructed as to produce no material interference with the railroad company's free exercise of its franchise or with the actual operation of the railroad.
It is not a prerequisite to the exercise of such right of condemnation that the telegraph company should first file with the railroad commission its consent that the commission shall have jurisdiction over it for the purpose of regulating tolls on messages originating and ending within the state of Georgia.
A telegraph company may not condemn a railroad company's right of way on both sides of the track, at least without making it appear that it is necessary to occupy both sides and that the railroad company's operation of its trains is not materially interfered with.
Where it appears that the demands of a modern railroad company are such that a telegraph system is a necessary auxiliary to its safe and proper operation, and where it appears that present telegraph service is afforded to the railroad company by an existing line of telegraph by virtue of a contract between the railroad company and the telegraph company, which contract is about to terminate, and where it appears that the existing lines are located on an advantageous portion of the right of way and that the railroad company, in order to obtain the necessary telegraphic service, intends and purposes, in good faith, to construct a line of its own on the location of the old telegraph line, relatively to the telegraph company proposing to condemn a right of way, the railroad company has a preferential selection of the route. Under such circumstances, the telegraph company will be enjoined from condemning the route which has been selected in good faith by the railroad company.
A railroad company cannot defeat the exercise of the right of eminent domain by a telegraph company in constructing a line of telegraph on a portion of its right of way by the construction and maintenance of a line on both sides of its track, when a line on one side of its track is ample to furnish it with necessary telegraph service.
A telegraph company cannot construct a line of telegraph over the land of the state without permission of the state. Civil Code, § 2811, does not grant that permission except upon due compensation. That section allows condemnation of the state's land by telegraph companies upon the same plane as the right of way of a railroad company and private land. The lessee of the state's road has only a usufructuary interest therein, and this cannot be condemned by a telegraph company, separately and apart from the state, in the absence of legislative sanction. Any condemnation proceeding must be against both.
Where a telegraph company in its notice of condemnation seeks only to occupy a railroad company's right of way for the purpose of constructing and maintaining a telegraph line, the possibility of stringing telephone wires for the use of a telephone company is no objection to the right to condemn. When the telegraph company attempts to impose an additional servitude, the railroad company has its remedy against such act.
A telegraph company will not be permitted to condemn the right of way of a railroad company for the construction and maintenance of lines of telegraph in such a manner as to materially interfere with the railroad company in the operation of its trains and in the transportation of passengers and goods. A telegraph line so constructed and maintained as not to interfere with the transportation of passengers and goods beyond the state is not a burden on interstate commerce.
The ruling in the case of Atlantic Coast Line R. Co. v Postal Telegraph, etc., Co., 120 Ga. 268, 48 S.E. 15, 1 Ann.Cas. 734, that the measure of damages, where the right of way of a railroad company is taken by a telegraph company, is the value of the land actually taken, and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company, that the right of way of a railroad company has no general market value for other uses than that to which it is applied, and that peculiar advantages and benefits accruing to a telegraph company from its use of the railroad's right of way cannot be considered in the assessment of damages, has not the effect of putting the eminent domain laws of the state in opposition to the due-process clause of the fourteenth amendment of the Constitution of the United States.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Suit by the Western & Atlantic Railroad Company against the Western Union Telegraph Company to restrain proceedings to condemn a right of way for telegraph line along complainant's railroad. From a decree denying an injunction, complainant brings error. Reversed and remanded.
Tye Peeples & Jordan, of Atlanta, and Claude Waller, of Nashville, Tenn., for plaintiff in error.
Dorsey Brewster, Howell & Heyman, of Atlanta, for defendant in error.
Many of the questions presented by this record are novel, and arise from the peculiar facts of the case. The state of Georgia owns a railroad extending between Atlanta and Chattanooga Tenn. On the 19th day of July, 1890, by authority of the General Assembly (Acts 1889, p. 141), the railroad was leased to the Nashville, Chattanooga & St. Louis Railway for the period of 29 years from December 27, 1890. The leasing company by the terms of the act became a body corporate under the name and style of the Western & Atlantic Railroad Company. Prior to the lease there had been erected on the right of way of the railroad a line or lines of telegraph poles and wires. At that time and continuously since a line of wire on these poles was set apart for the exclusive use of the lessee in the transaction of its railroad business. In 1891 another line of wire was strung for the exclusive use of the leasing company, at considerable cost to the lessee. And in 1906 a line of double wires and a line of single wire were stretched upon the same poles at segmental parts of the railroad, at considerable expense to, and for the exclusive use of, the leasing company in the operation of the railroad. In 1884 the Western Union Telegraph Company and the Nashville, Chattanooga & St. Louis Railway Company entered into a contract for the maintenance and operation of a telegraph line upon its own railroad and such other railroads that it might subsequently acquire by lease or purchase. This contract was to continue in force for 25 years from July 1 1884, and thereafter until the expiration of one year after written notice by either party to terminate the contract. In this contract the telegraph company obligated itself to set apart one wire on the main line for the preferential use of the railroad company and agreed that, if the railroad company should require greater wire facilities, the telegraph company would furnish an additional wire at the cost price upon poles already erected, and that the railroad company at its own cost would string such additional wires. In August, 1911, the telegraph company gave to the railroad company written notice of its intention to terminate the contract after the expiration of one year. The telegraph company then opened up negotiations with the Western & Atlantic Railroad Company to purchase an easement for their line of poles and wires, which negotiation was fruitless. Whereupon the telegraph company served the Western & Atlantic Railroad Company with written notice of its purpose to condemn, along its right of way in this state, a right of way upon which to construct (when necessary), maintain, and operate its telegraph line. "The location of the right of way sought to be acquired is substantially that location now occupied by the telegraph line of the Western Union Telegraph Company along main line of your railroad from Atlanta, Ga., to the Tennessee line at or near Graysville, Ga., and along the branch line known as the Rome branch"; the main line running from Atlanta, Ga., to the Tennessee state line at or near Graysville, Ga., through the counties of Fulton, Cobb, Bartow, Gordon, Whitfield, and Catoosa, a distance of approximately 121.37 miles. The telegraph line will enter upon the right of way of the railroad company at the Marietta Street Bridge at the same point where it now enters upon the right of way, and continue upon the east side of the tracks a specified distance of about three miles, then to cross the tracks and continue on the west side, a specified distance, to a point north of the 5-mile post, then to cross the tracks and continue on the east side at a specified distance to the 6-mile post, at which point the line would divide, and part of the line cross to the west side of the tracks. From the 6-mile post to the Tennessee state line the line would extend on both sides of the track as now located, except at Marietta, Adairsville, Dalton, and Tunnel Hill. The right of way thus sought to be acquired by the telegraph company to be of sufficient width to enable it to conveniently construct (when necessary), maintain, and operate its line located and constructed substantially as follows: As many wires or cables of wire as might be necessary from time to time to transact the business of the telegraph company, to be strung on poles placed at an average distance from the center of the main line track of 27 feet, except where your right of way is limited or widened, with a minimum distance from edge of right of way (except where right of way is limited or...
To continue reading
Request your trial