Western Union Tel. Co v. Williams

• Decision Date: 27 March 1890
• Citation: 86 Va. 696,11 S.E. 106
• Parties: Western Union Tel. Co. v. Williams.
• Court: Virginia Supreme Court

11 S.E. 106

86 Va. 696)

Western Union Tel. Co.

v.Williams.

Supreme Court of Appeals of Virginia.

March 27, 1890.

Constitutional Law— Highways — Telegraph Companies.

1. The public have, as regards a highway, merely the right of passage along and over it, the absolute property remaining in the owner of the soil from whom the right of passage was acquired; and the erection of poles, and the stringing of wires, by a telegraph company, along such highway, is an additional servitude, and constitutes a taking of private property for public use.¹

2. Act Va. Feb. 10, 1880, (Code §§ 1287-1290,) which authorizes any telegraph company to construct and operate its line along any public road in the state, provided the use of such highway is not obstructed, in so far as it fails to provide for additional compensation to abutting land-owners, violates the constitutional prohibition of the taking of private property for public use without compensation.

Lewis and Richardson, JJ., dissenting.

Trespass by Williams against the Western Union Telegraph Company. Act Va. Feb. 10, 1880, (Code §§ 1287-1290,) provides (Code, § 1287) that every telegraph company may construct and operate its line along any of the state or county roads of the state, provided the ordinary use of such roads be not obstructed. This section makes no provision for compensation to owners whose lands abut on such road. Sections 1288, 1289, provide for compensation to " the owners of land * * * over which such line is proposed to be constructed. "

Staples & Munford and Robert Stiles, for plaintiff in error.

Pollard & Sands, E. T. Lacy, and W. W. Gordon, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of New Kent county rendered on the 30th day of October, 1888. The plaintiff in error constructed its telegraph line upon the county road in New Kent county, where the said road ran over the lands of the defendant in error, without his consent, and without condemnation proceedings, and without tendering compensation, and refusing to pay compensation, therefor. As is alleged in the declaration, the defendant, " against the will of the plaintiff, and violently, against the protest of the plaintiff, entered upon the said land, and cut down and destroyed the trees and underwood, —fifty pine trees, twenty oak trees, and other trees, of the value of $1,950, —and broke down and prostrated a great part of the fences of the said plaintiff, and dug holes in the land of the plaintiff, and put posts there and kept the same there, etc., and incumbered theland, and hindered the plaintiff in the free use and enjoyment thereof." The defendant pleaded "Not guilty, " and moved the court to remove the case to the federal court, which motion to remove the case the court overruled, and the case proceeded to a trial; and upon the trial the jury rendered a verdict in favor of the plaintiff for the sum of $550, upon which judgment was rendered accordingly, whereupon the defendant, the plaintiff in error here, applied for and obtained a writ of error to this court.

There were sundry exceptions taken at the trial which were assigned as error here. The first assignment which we will consider is as to the refusal of the court to give to the jury certain instructions asked by the defendant, and the giving by the court of certain other instructions. The plaintiff moved the court to instruct the jury to the following effect: That, "if the jury believe from the evidence that the defendant was, at the time of the committing of the alleged trespass in the declaration mentioned, and still is, a telegraph company chartered by this or any other state, and that the road along which it has constructed and maintained, and still is maintaining, its telegraph line in the county of New Kent, was at said time, and still is, a county road, then the said defendant had at said time, and still has, the right to construct and maintain its said line along said county road, upon any part thereof, to the width or extent of 30 feet, whether the road-bed actually used by the public was and is of such width or not, provided the ordinary use of said road be not thereby obstructed; and said defendant had at said time, and still has, the right to cut down and trim out such trees or limbs, within such width or extent of thirty feet, as might interfere with the proper and effective construction, maintenance, and operation of its said line. (2) For the exercise of such right as aforesaid, the defendant is not required to obtain permission from, or to make compensation to the owner or owners of the land upon which said road is located, whether the fee-simple title to the soil upon which the road is located, or the mere easement thereon, be vested in the public. (3) The jury are further instructed that, although the road-bed of said road actually used by the public may not be or have been of the width of thirty feet, and although the overseer of said road may not have complied with the law in keeping said road clear and smooth, and free from obstructions, to the legally required width of thirty feet, yet, under the laws and statutes of the commonwealth, the defendant company was authorized to use any part of said legal road of thirty feet to the same extent as if said overseer had strictly complied with the provisions of law requiring him to keep said road clear of timber and other obstructions to the required width, and the whole thirty feet been actually used by the public as a road. " But the court refused to give these instructions of the defendant, and gave the following: "(1) The court instructs the jury that the law presumes that the ownership of landsalong the side of a public road in Virginia extends to the middle of said road, and the burden of proof is upon the party who claims otherwise to show that such is not the case along the road where the right is controverted; and the owner has the exclusive right to the soil, subject to its use for the purposes of the public, and to the right of passage of the public over the same; and, being owners of the soil, they have a right to all of the ordinary remedies for disturbing of, or injury to, their freehold or possession; and any act of the legislature which divests such owners of their rights is unconstitutional and void. (2) The fact that a road is a public road or highway does not authorize the digging of holes for the purpose of erecting telegraph posts, and the erecting of posts, and the establishing a telegraph line, over the lands of a person, without his consent, although the same may be erected or done on that part of his premises which is used as a public road." It thus appears that the claim of the defendant is that, by reason of the act of assembly of February 10, 1880, (Acts 1879-80, pp. 53, 54,) it was authorized to construct its telegraph poles and line along the land over which the county road runs, without making compensation therefor, and that it maintains its right to exercise, as to these lands, the right of eminent domain thereon, —to take and enjoy what belongs to another, in the exercise of the sovereign power, not only without making any compensation therefor, but without any formal proceedings looking to condemnation of this property under any of the forms of law whatever.

If it is once conceded, or in any wise established, that the land in question belonged to the plaintiff, it was his private property, his freehold; as entirely his own, throughout all its parts, as the shelter which he had erected around and over his hearthstone, for his habitation and home, and as entirely under the protection of the laws against the intrusion as the very hearthstone itself. That these lands are the lands of the plaintiff, unless he has lost them by the creation of a public road across them, is undeniable, —is, indeed, not denied. Does the creation of a public road through the land divest him of the fee in the same'

As to the extent of the right acquired by the public upon opening a highway in Virginia, Mr. Minor, in his Institutes, (volume 1, p. 120,) says: "The public acquires merely a right of passage. The freehold and nil the profits of the soil (that is, trees, mines, etc.) belong still to the proprietor from whom the right of passage was acquired. He may, therefore, recover the freehold in ejectment, subject to the right of way, and may maintain an action of trespass for digging the ground. If it be unknown from which of two adjacent proprietors a highway was at first taken, or if the highway be the boundary between them, they are understood to own each ad medium Slum vise." Citing Bac. Abr. "Highways, " ft; Boiling v. Mayor of Petersburg, 3 Rand. (Va.) 563; Home v. Richards, 4 Call, 441; Harris v. Elliott, 10 Pet. 25. And this subject is again referred to by Mr. Minor in his second volume, p. 20, as to the ownership of land adjacent to highways, when he says: "The ownership usually extends to the middle of the road, as in the case of a private stream; or, if the same party owns on both sides, the whole road belongs to him, subject to the public easement of the right of passage in either case. Citing 3 Kent, Comm. 432." in the case of Home v. Richards, supra, all the judges delivered opinions, and all held that the grant of the right of way does not convey the soil, but only the right to a way over. In the case of Boiling v. Mayor of Petersburg, supra, — a case fully and ably argued in this court by the foremost lawyers of that day, —Judge Carr delivered the unanimous opinion of the court. Speaking as to the public highway, he said: "Does this disable the demandant from recovering the land? It certainly would not in England, as many cases show." Citing Lade v. Shepherd, 2Strange, 1004. In that case the defendant rested one end of a bridge upon the highway. Upon tresspass brought, the court said: "It is certainly a dedication to the public so far as the public has occasion for it, which is only for a right of...