Western Union Telegraph Co. v. Louisville & N.R. Co.

• Citation: 89 So. 518,206 Ala. 368
• Decision Date: 30 June 1921
• Docket Number: 3 Div. 491
• Parties: WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

89 So. 518

206 Ala. 368

WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO.

3 Div. 491

Supreme Court of Alabama

June 30, 1921

Rehearing Denied July 15, 1921

Appeal from Circuit Court, Montgomery County; William L. Martin Judge.

Suit by the Western Union Telegraph Company against the Louisville &amp Nashville Railroad Company. From a decree denying the relief prayed, complainant appeals. Affirmed.

Francis R. Stark, of New York City, Rushton & Crenshaw, of Montgomery, and Forney Johnston, of Washington, D.C., for appellant.

Jones Thomas & Jones and Goodwyn & McIntyre, all of Montgomery, for appellee.

McCLELLAN J.

The Western Union Telegraph Company, appellant, filed this (substituted) bill against the Louisville & Nashville Railroad Company, appellee, for the purpose, aside from injunction to maintain the status quo pendente lite, of invoking the aid of equity to put the appellant into possession and to assure to it the enjoyment of an easement or right of way, on the west side of appellee's railway line from Montgomery, Ala., to that line's intersection with the Alabama-Tennessee state line. The right to the easement claimed by the appellant is ascribed and attributed to condemnations of rights of way asserted to have been effected in the year 1877; the condemnor being the appellant's predecessor in right.

The report of the former appeal of this cause contains a more complete statement of facts from which the asserted right to relief is derived. W.U. Tel. Co. v. L. & N.R.R. Co., 202 Ala. 542, 81 So. 44.

Among other matters in bar of the relief thus sought, the defendant (appellee) set up the concluding abandonment of the easement in question. On former appeal touching the subject of abandonment, it was soundly held:

"Mere nonuser of a right of way or other easement, acquired by grant or condemnation, however long continued, will not of itself work an abandonment and forfeiture of the right. Such nonuser must be accompanied by an intention to abandon, and this intention must be clearly deducible from the declarations or conduct of the claimant, or from the facts and circumstances incidental to his nonuser. 14 Cyc. 1187, c; Stein v. Dahm, 96 Ala. 481, 11 So. 597; T. & C.R.R. Co. v. Taylor, 102 Ala. 224, 14 So. 379. The question is one of fact."

The essence of the inquiry of abandonment vel non of an easement by the owner is his intention. In the absence of other evidence going to show an intention to abandon the right or easement, mere lapse of time and nonuser will not serve to justify a finding that an easement has been abandoned by the owner; but lapse of time and nonuser are evidentiary of an intention to abandon, and, when considered with other evidence of such intention, may be entitled to great weight according to the circumstances. 1 R.C.L. p. 6; 9 R.C.L. pp. 810, 811, 812-813; W.U.T. Co. v. L. & N.R.R. Co., 202 Ala. 548, 549, 81 So. 44; T. & C.R.R. Co. v. Taylor, 102 Ala. 224, 228, 14 So. 379.

The original bill in this cause was filed in the year 1917. The substituted bill (interposed in 1919) avers that the original condemnor of a right of way on the west side of the railways between Montgomery and the Alabama-Tennessee state line, the Atlantic & Pacific Telegraph Company, appellant's predecessor and grantor in the conveyance of 1881, never took possession of the right of way so condemned in 1877, nor has the appellant ever constructed a telegraph line on the west side of said railways, the reason assigned being that appellant's predecessor (grantor), as well as appellant had, in 1877, and ever since, a serviceable telegraph line on the east side of said railways between Montgomery and the Alabama-Tennessee state line under contracts of lease to that end. The fact is thus conceded that neither appellant nor its predecessor (grantor) has ever acted under or upon the asserted condemnations of 1877; that 40 years elapsed between the date of these alleged condemnations and the filing of the original bill in this cause; and that 36 years elapsed between the date the appellant claims to have acquired the rights of the condemnor and the filing of the original bill in this cause. Considering these great periods of absolute inaction in the premises, in connection with the other evidence (to be summarized) indicative of an intention alone consistent with a purpose to forego and abandon, the pleaded defense of abandonment of the easement of way thus asserted is established. Besides the stated inaction for so great periods with no assertion or avowal thereof by appellant or its predecessor, additional evidence of intention to abandon the easement is afforded by these acts and facts, to omit reference to any others: (a) In 1884 the appellant leased from the appellee the exclusive, unrestricted right to maintain its telegraph line on the appellee's railway lines in this state for a term of 25 years and thereafter until 1 year...