Western Union Telegraph Co. v. St. Joseph & W. Ry. Co.

• Decision Date: 31 July 1880
• Citation: 3 F. 430
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. THE ST. JOSEPH & WESTERN RAILWAY COMPANY and others.
• Court: U.S. District Court — District of Kansas

3 F. 430

THE WESTERN UNION TELEGRAPH COMPANY v. THE ST. JOSEPH & WESTERN RAILWAY COMPANY and others.

United States Circuit Court, D. Kansas.

July 31, 1880

Woodson & Crosby, W. C. Webb, Peck, Ryan & Johnson, Karnes & Ess Williams & Thompson and C. Beckwith, for complainant.

John Doniphan and Everest & Waggener for defendants.

McCRARY C.J.

This case has been argued and submitted upon demurrer to the bill. The material facts, as they are stated in the bill, are as follows.

1. On the tenth day of August, 1871, the Western Union Telegraph Company, and the St. Joseph & Denver City Railroad Company entered into a written contract, whereby, upon certain terms and conditions, a line of telegraph was to be constructed maintained, and operated along the line of said railroad. Each company was to contribute, as specified in the contract certain material and service in the construction, maintenance, and operation of the line.

2. The railroad company agreed to give the telegraph company the exclusive right of way, on and along the line of the road, for the construction and use of a telegraph line for public and commercial business.

3. Provisions were made for transacting the telegraph business of the railroad company by the telegraph company.

4. The agreement was to continue in force for the term of twenty-five years from the tenth of August, 1871.

5. In pursuance of the contract, and in full reliance upon its legality, and the good faith of the railroad company in making it, the plaintiff has erected and maintained, at great cost and expense, a line of telegraph along the line of the railroad, consisting of two wires, one extending from Elwood, in Kansas, and St. Joseph, Missouri, to Hastings, Nebraska, and the other from the same points to Hanover, in Kansas.

6. The said railroad company constructed its railroad from a point opposite the city of St. Joseph, Missouri, although the charter was for a railroad from Elwood, Kansas, westwardly to a junction with the Union Pacific Railroad, or any branch thereof, and it was expressly understood and agreed between plaintiff and said railroad company, at the time the contract was entered into, that the plaintiff was to operate, maintain, and establish its telegraph along the line of the railroad, from St. Joseph, through Elwood, Kansas, and the line was so erected, and has been so maintained and operated.

7. Certain mortgages executed by the said St. Joseph & Denver City Railroad Company were duly foreclosed, and under decree of foreclosure thereof all the land, property, rights, and franchises of said company were duly sold and conveyed to persons representing the holders and owners of the mortgage debts. In 1875 the purchasers, and those for whose benefit they purchased, took possession of the entire line from St. Joseph to Hastings. Afterwards the St. Joseph & Western Railroad Company was organized, and all the property, rights, and franchises of the old company were sold and conveyed to it.

8. Since the purchase by said last-named company (defendant herein) it has been using and operating the railroad, and has fully ratified, sanctioned, and confirmed the contract made and entered into between the plaintiff and St. Joseph & Denver City Railroad Company, and received and enjoyed all the benefits and advantages of said contract that had been received and enjoyed by the St. Joseph & Denver City Railroad Company down to the time the new corporation, now owning and controlling the same, was formed.

9. The defendants have combined and confederated together for the purpose of defrauding the plaintiff of said line of telegraph, and of the property and wires connected therewith, and did, about the twenty-seventh of February, 1880, unlawfully and with force seize the telegraph line at a point in Doniphan county, Kansas, etc., and did forcibly deprive plaintiff of all possession, in benefit and control, of said telegraph wires and batteries, etc.

The prayer is for an injunction to restrain defendants from preventing plaintiff reconnecting the wires that have been cut and severed as aforesaid, and restoring the connection which has been severed, and from preventing the plaintiff from using the said line and wires, and enjoying all the benefits to which plaintiff is entitled under said contract...