Western Union Tel Co. v. Pennsylvania Co.

• Decision Date: 02 May 1904
• Docket Number: 24.
• Citation: 129 F. 849
• Parties: WESTERN UNION TELEGRAPH CO. v. PENNSYLVANIA CO.
• Court: U.S. Court of Appeals — Third Circuit

129 F. 849

WESTERN UNION TELEGRAPH CO. v. PENNSYLVANIA CO.

No. 24.

United States Court of Appeals, Third Circuit.

May 2, 1904

Rush Taggart, for appellant.

George B. Gordon, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

This is an appeal from the decree of the Circuit Court for the Western District of Pennsylvania, entered upon a demurrer to an amended bill of complaint filed by the complainant below the appellant here. The decree sustained the demurrer, and dismissed the amended bill of the complainant.

The suit is founded upon a written contract, entered into in the year 1856, and certain parol modifications thereof set forth in the bill, between the Western Union Telegraph Company and the Cleveland & Pittsburg Railway Company. The written contract filed as an exhibit and made part of the bill, is as follows:

'An agreement made and entered into this-- day of October 1856, between the Western Union Telegraph Company, of the first part, and the Cleveland & Pittsburg Railroad Company of the second part, witnesseth as follows:

1st. The said Railroad Company is to put up, as soon as the work can be reasonably done, along the line of its road, from Cleveland to Rochester via Alliance and Wellsville, and also from Wellsville to Bellaire, a line of telegraph poles or posts of good timber, stripped of the bark, and permanently and securely set in the ground, thirty to the mile, not less than eighteen feet high above the ground, and not less than nine inches in diameter on an average, at the surface of the ground when set, with cross arms suitable for two or more wires, well and securely fastened to the poles.

2nd. The said Telegraph Company is to furnish wire, insulators, instruments, patents and everything except the posts or poles and cross arms, and complete said line with one wire and extend it upon the poles now up, or upon other poles equally good, along the Ohio & Pennsylvania Railroad, from Rochester to Pittsburg, and put said line in operation as soon after the poles are set as is reasonably practicable, and open offices at Cleveland, Hudson, Ravenna, Alliance, Wellsville, Rochester, Pittsburg, Steubenville and Wheeling, and such other places on the line as the said Railroad Company may designate and furnish instruments for; and the said Railroad Company is to pay to the said Telegraph Company the loss, if any, at any office on said line where the expenses amount to more than the receipts of the office for said line; and the said Telegraph Company is to send, free of charge, over to the business of said Railroad, including the ordinary family communication of its officers and agents, that may be required by any of the officers or agents, giving preference to messages of emergency or pertaining to accidents.

3d. The said Railroad Company is to pay to the said Telegraph Company, as soon as the said line is completed and in working order, thirty dollars a mile for the length of the wire, including that from Rochester to Pittsburg, and also to pass or convey, free of charge, over its said road all men and materials used or employed in building and operating said line.

4th. The said Railroad Company is to have the right at any time to put upon said posts, or cross-arms, a telegraph wire and work the same for its exclusive use, but not to send any messages thereon other than those pertaining to the business of the said railroad and the ordinary family communications of its officers and agents, at or from points where the said Telegraph Company may or shall have an office.

5th. The said Telegraph Company is also to have the right to string another wire for its own use upon said posts or poles at any part thereof.

6th. When the wire of the said Railroad Company, as provided for in article fourth, is down or out of order, the said Telegraph Company is to do the telegraph business of the said Railroad Company upon its wire or wires, or any parallel wire it has or may have, and when the wire or wires of the said Telegraph Company is, or are, down or out of order it is to have the right to send its business free over the wire of the said Railroad Company, but not to interfere with or delay the telegraph business of the said Railroad Company.

7th. After the telegraph line is completed with one or more wires, the same is to be kept in repair by the said Railroad Company, and maintained in first rate working order, so far as practicable. But the said Telegraph Company is to furnish, or pay, to the said Railroad Company, the cost of the wires and insulators used and necessary in maintaining the wire or wires of the said Telegraph Company in good working order.

8th. The said Railroad Company is not to allow any other Telegraph Company, or individual to build or operate a line of telegraph on or along its said railroad, or any part thereof.

9th. The said Railroad Company is not to be liable to the said Telegraph Company, or to any of the employes thereof, for any accidents or injuries to the said employes while traveling on the cars, free of charge, under this contract. Nor is the said Telegraph Company to be liable to the said Railroad Company for any damage or mistake in the transmission or delivery of messages.

In witness whereof,' etc. (Executed by the seals of the companies and the hands of their presidents respectively.)

'It is understood that if the poles between Steubenville and Bellaire will answer for that line, new poles will not be required during the life of those poles. Also, that No. 9, good wire, shall be used, and that the poles shall be of sufficient size.

Cleveland & Pittsburg Railroad Company,

(Seal. C. & P.R.R. Co.)

(Signed)

By C. W. Rockwell, President.

(L.S.)

(Signed)

E. Rockwell, Secretary.'

'At a stated meeting of the Board of Directors of the Western Union Telegraph Company, held at the office of the Secretary, in the City of Rochester, on the 21st day of January, 1857, the following preamble and resolution were passed:

'Whereas, In the month of October, last past, this Company on its part, executed a contract between this Company, of the first part, and the Cleveland & Pittsburg Railroad Company, of the second part, providing among other things for the construction of a telegraph line along the route of the said railroad.

'And Whereas, the said Railroad Company has executed the said contract with the following supplementary clause, and in the following form, that is to say: 'It is understood that if the poles between Steubenville and Bellaire will answer for the line, new poles will not be required during the life of these poles. Also, that No. 9, good wire, shall be used, and that the poles shall be of sufficient size."

The Cleveland & Pittsburg Railroad Company, (Signed) By C. W. Rockwell, Prest.

(L.S.)

(Signed) E. Rockwell, Secy.'

'Resolved, That this Company assent and agree to said supplementary clause, and that the President and Secretary, on behalf of this Company, execute any paper necessary to verify the said assent to said clause.'

'This certifies that the foregoing is a true extract from the records of the Western Union Telegraph Company.

June 22, 1857.

(Signed) H. Sibley. Prest. of the W. U. Tel. Co. (Signed) I. R. Elwood, (Seal W. U. T. Co.) Secy. of the W. U. Tel. Co.'

The material allegations of the bill are as follows:

In paragraph 2 and 3, the complainant sets forth that the 'Western Union Telegraph Company,' the complaint, is a telegraph company and a corporation duty organized under the laws of the state of New York, and that the 'Pennsylvania Company,' the defendant, is a corporation organized under the laws of the state of Pennsylvania, and in possession of and operating a line of railroad known as the 'Cleveland & Pittsburg Railroad,' extending from the town of Rochester, in the state of Pennsylvania, through the states of Pennsylvania and Ohio to the city of Cleveland; also from the mouth of Yellow creek, near Wellsville in the state of Ohio, via Steubenville, to Bellaire; and also from Bayard to New Philadelphia in the state of Ohio; that the said Cleveland & Pittsburg Railroad is a corporation organized under the laws of the states of Pennsylvania and Ohio, and in October, 1871, it executed a lease, for the term of 999 years, of its said line of railway to the Pennsylvania Railroad Company, a corporation organized under the laws of the state of Pennsylvania; that in the year 1873 this lease was assigned to the defendant, the Pennsylvania Company, which has ever since operated the said railroad under the same.

Paragraph 4 of the bill sets forth that the complainant was organized as a telegraph company in the year 1851, and has been continuously since that time engaged in the work of constructing and operating telegraph lines, and has acquired a continuous system of telegraph lines, which now extends through all the states and territories of the United States and into portions of the Dominion of Canada, and connects with telegraph lines of Central and South America, and by submarine cables with the telegraph systems of foreign countries; and that among the lines of telegraph forming an important part of said system of said complainant, and connecting with its main office in the city of New York, and with other lines of telegraph leading to the important commercial centers of the West and Southwest, are the lines of telegraph over and along the said Cleveland & Pittsburg Railroad.

In paragraph 5, complainant states that the lines of telegraph along the said Cleveland & Pittsburg Railway were originally constructed by the complainant, the Western Union Telegraph Company, and the Cleveland & Pittsburg Railroad Company above recited as Exhibit I, attached to and made a part of...