Western Union Telegraph Co. v. Pennsylvania R. Co.

• Decision Date: 15 January 1903
• Docket Number: 3,18.
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: WESTERN UNION TEL. CO. v. PENNSYLVANIA R. CO. (two cases).

120 F. 362

WESTERN UNION TEL. CO. v. PENNSYLVANIA R. CO. (two cases).

Nos. 3, 18.

United States Circuit Court, W.D. Pennsylvania.

January 15, 1903

[Copyrighted Material Omitted]

A. M Neeper, Rush Taggart, and Henry D. Estabrook, for plaintiff.

Patterson Sterrett & Acheson and John G. Johnson, for defendant.

Heard together on petition in the former case, and on motion in the latter for a preliminary injunction.

BUFFINGTON District Judge.

This opinion concerns two cases brought in this court by the Western Union Telegraph Company against the Pennsylvania Railroad Company,-- one, a petition on the law side to condemn part of the railroad's right of way, and appropriate it to telegraph purpose; the other, a bill on the equity side, praying for an injunction to restrain the railroad from dispossessing the telegraph company during the pendency of said condemnation proceedings. Briefly summarized, the relations of the parties are as follows: The Atlantic & Ohio Telegraph Company is a corporation chartered by the state of Pennsylvania. On June 20, 1864, it entered into a contract with the Pennsylvania Railroad Company, whereby the latter granted permission to the telegraph company to place a telegraph line on the railroad's right of way. On April 15, 1864, the Atlantic & Ohio Telegraph Company had leased to the Western Union Telegraph Company, a corporation of the state of New York, all its property for 10 years, the lease to be terminated after that time by either party on 6 months notice. Thereafter the Wester Union Telegraph Company operated the Atlantic & Ohio's telegraph lines on the railroad right of way. On September 20, 1881, the Western Union Telegraph Company and the Pennsylvania Railroad Company entered into a new contract covering this telegraph line. This contract was for 20 years, at the end of which time it could be terminated by the railroad on 6 months notice. On May 15, 1902, the railroad gave the telegraph company notice of the termination of the lease, and to remove its lines on December 1, 1902. On November 26, 1902, the Western Union Telegraph Company brought its petition and bill in equity in this court as noted above. As the two are interrelated, we will dispose of the questions arising under each in one opinion, which may be considered as filed in each cash.

We first take up the petition. By it the Western Union Telegraph Company seeks to condemn and appropriate to its use for telegraph purposes a strip of ground located on the right of way of the Pennsylvania Railroad from Pittsburg to Philadelphia, and upon numerous branches or connecting side lines as well. The total appropriation thus sought, indicated by an accompanying map, covers upward of 1,500 miles of railroad right of way. The petition prays that this court approve a tendered bond in the sum of $100,000, and order the same to be filed 'for the use and benefit of the Pennsylvania Railroad Company in its own behalf, and as the owner, lessee, or operator of the railroads over whose properties the rights of way sought to be appropriated by the Western Union Telegraph extend'; that proceedings be had to determine the compensation to be paid; that upon payment of said sum into court or to the railroad possession be adjudged of said 'use, rights, and interests'; and that 'the title to the said rights and interests, as against the defendant, thereby vest in the said Western Union Telegraph Company.' An examination of the prayers of this petition in connection with the resolutions of the Atlantic & Ohio Telegraph Company and those of the Western Union Telegraph Company, its lessee, and in pursuance of which resolutions this proceedings is begun, shows that what is here sought to be appropriated is the ownership of and title to a part of the ground constituting the general right of way of the railroad company. It is true there is in the resolutions a clause stating that what is appropriated shall be 'subject to such reasonable changes of location of said poles, at the direction of said railroad company, from time to time hereafter, as may be necessary to prevent said telegraph line from interfering with the ordinary use and travel upon said railways.' We find no statutory provision or limitation for a condemnation of land which subjects it to such shifting and transient ownership and occupation as above suggested. If the petitioner is entitled to condemn and appropriate, it would seem it is entitled to have and to hold what it acquires and pays for. But it is, in any view, clear that this clause, if enforceable, would only permit the railroad to shift upon, but never remove from, its right of way, the telegraph lines of the appropriating company. If the railroad's future needs should demand the occupation hereafter of the whole of its present right of way for additional tracks, or if its own telegraphic necessities required it to duplicate on the north side the private telegraph lines it now has on the south side of its right of way, it is evident that it could not exclude from such north side, or at all events from its right of way generally, a telegraph company that had condemned and acquired what is here sought. Whether, then, the land appropriated to be a definite, fixed line, or a shifting strip, subject to relocation by the railroad, it is certain it is some part of the railroad's right of way, and that to such part the telegraph company could acquire exclusive, adverse ownership. Indeed, as we have seen, this is the object sought, viz., that 'the title to said rights and interests, as against the defendant, thereby vest in the said Western Union Telegraph Company'; and that a fixed prayer of the bill in equity for a permanent injunction: 'That, upon due payment of said compensation by your orator to the defendant, this court will order, adjudge, and decree that your orator is entitled to a perpetual injunction against the defendant herein restraining it from in any manner interfering with the location, construction, maintenance, and operation of your orator's said lines of telegraph upon the roadway or right of way of the said defendant.' Under any view, as to the part so taken and occupied, even for the time being, by the petitioner's poles, the railroad is excluded from the use thereof for its tracks, for its own telegraph lines, and for the lines of other telegraph companies, whose tenancies might be highly remunerative and desirable, or whose facilities would substantially aid in the transaction of the railroad's business. This question of the future needs of the railroad, its unhampered control and sole use of its right of way to enable it to fully perform its public duty of a common carrier, is one of grave importance. A railroad's right of way is the artery of its life; its acquisition and construction difficult and costly; the extent to which it can be used for additional track room the limit of the railroad's development. In taking from it any part of such ground, due regard should, therefore, be had to its future needs. It was well said by Judge McKennan in a case in this court, later referred to:

'Every reasonable intendment must be made in favor of the primary rights of the complainant (in this case, the case of a railroad seeking to prevent part of its right of way being reappropriated). * * * No actual encroachment upon these rights can be sanctioned or allowed; and in measuring their extent there must be a liberal consideration of the future as well as the present necessities of the complainant, touching the use of the existing tracks, the construction of additional ones, the convenient storage of its freight at all seasons, and the unembarrassed transaction of all its freight business.'

We deem the question therein mentioned as to the future needs of a railroad in fulfilling its chartered purpose such as should receive thoughtful regard and due consideration before it is deprived of any part of its right of way.

Now, whatever the scope of the appropriation sought, and however the ownership thereof may be possibly qualified under the clause relating to relocation, it is clear that what is sought is an adverse, in invitum appropriation covering many hundred miles of railroad property, and that 'the title to said rights and interests, as against the defendant, thereby vest in the said Western Union Telegraph Company. ' Indeed, the absolute and exclusive character of telegraph appropriation, with reference to a street,-- and the same may be said, mutatis mutandis, to the occupation of a railroad,-- is stated by the supreme court of the United States in City of St. Louis v. Western Union Tel. Co., 148 U.S. 92, 13 Sup.Ct. 485, 37 L.Ed. 380:

'But the use made by the telegraph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportations of messages, that space is, as far as respects its actual use for purposes of a highway and personal travel, wholly lost to the public. By sufficient multiplication of telegraph and telephone companies the whole space of the highway might be occupied, and that which was designed for general use for purposes of travel entirely appropriated to the separate use of companies for the transportation of messages.'

The present question of the filing and approval of the bond tendered is, on the surface, of seemingly small import, and might be regarded as a formal preliminary step in a legal contest. In reality, under the Pennsylvania decisions, as applicable to the facts of this case, approval by the court of the bond vests in the appropriating company as clear and perfect a...