Western Union Telegraph Co. v. South & N.A.R. Co.

• Decision Date: 24 April 1913
• Citation: 184 Ala. 66,62 So. 788
• Parties: WESTERN UNION TELEGRAPH CO. v. SOUTH & N.A.R. CO.
• Court: Alabama Supreme Court

62 So. 788

184 Ala. 66

WESTERN UNION TELEGRAPH CO. v. SOUTH & N.A.R. CO.

Supreme Court of Alabama

April 24, 1913

On Application for Rehearing, June 19, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Condemnation proceedings by the Western Union Telegraph Company against the South & North Alabama Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Sayre J., dissenting

George H. Fearons, of New York City, and E.K. Campbell, William C Fitts, and Forney Johnston, all of Birmingham, for appellant.

H.L Stone, of Louisville, Ky., George W. Jones, J.M. Foster, and S.L. Field, all of Montgomery, Mallory & Mallory, of Selma and Tillman, Bradley & Morrow, of Birmingham, for appellee.

DE GRAFFENRIED, J.

The South & North Alabama Railroad Company is a corporation organized under the laws of Alabama and operates a line of railway as a common carrier of freight and passengers from Decatur, Morgan county, Ala., to Montgomery, Ala. The right of way is 100 feet wide, more or less, along the course of said railway. For most of the way the railroad company has a single line of railway, the track being 4 feet and 8 1/2 inches gauge, and along its entire way it possesses and uses such switches, turnouts, turntables, water tanks, depot buildings, and roundhouses as are necessary to the proper conduct of its business. The track is in the center, or near the center, of the right of way. At Decatur and at Montgomery it connects with the main line of the Louisville & Nashville Railroad Company, which, as a common carrier of freight and passengers, engaged in both interstate and intrastate traffic, operates a railway in Alabama and in several other states. In fact, the South & North Alabama Railroad Company is operated by the Louisville & Nashville Railroad Company as a part of its main line of railway between the cities of Louisville and Nashville, by way of Decatur Birmingham, Montgomery, and Mobile, Ala., to New Orleans, La. The South & North Alabama Railroad Company is, however, as above stated, an independent corporation, and it is, without question, the party against whom this proceeding should have been instituted.

About 40 years ago, under a contract with said South & North Alabama Railroad Company, the Western Union Telegraph Company erected a telegraph line upon the right of way of said railroad company at a distance of not less than 30 feet from the outer edge of the track of said railway company at all places where it was practical to so erect the same; and its poles are so erected, and its telegraph lines so constructed and maintained, as not to obstruct or hinder travel on said railway and not to interfere with the use by the railroad company of its right of way in the conduct of its business as a servant of the public. The said contract of the Western Union Telegraph Company was, when this proceeding was instituted, about to expire, and by this proceeding the telegraph company seeks to condemn that part of the right of way of said railroad company on which its poles are now located and to maintain its telegraph wires thereon, "subject to such changes of location on such right of way as the necessities of the railroad company may require." "All of said lines of telegraph of your petitioner as aforesaid to be and continue as now located, maintained, and operated, upon and along all of the aforesaid rights of way of the said South & North Alabama Railroad Company, as the same is laid out and surveyed, except as to changes in location on said rights of way as the necessities of the said railroad company may from time to time require."

The petitioner offers to pay such reasonable and just compensation for the use of the part of the right of way sought to be condemned as may be decreed by the court and concludes its petition as follows: "And your petitioner further avers that the only land occupied by the poles of your petitioner on and along said right of way does not exceed a circular piece of land 18 inches in diameter for each pole now existing, or hereafter to be erected, six feet deep, in which the poles supporting cross-arms, wires, and appurtenances aforesaid are now placed, and does not include the whole but a very small fractional part of the right of way aforesaid of said railroad company and at present in use by your petitioner under agreement with the defendant railroad company. The use of this land by your petitioner is a public use and is authorized by law, and the taking of this proceeding is necessary to such use, and the public use to which it is applied and is to be used is of actual necessity and is a more necessary public use than that to which it is appropriated by the railroad company and will not interfere with any public use to which such property is subjected or devoted."

Through the proceedings in this cause and the proceedings in two similar causes pending in this court, the Western Union Telegraph Company seeks to condemn, to its use, subject to the limitations above stated, for the purpose of maintaining a line of telegraph thereon, a part of the right of way of the entire Louisville & Nashville Railroad system in this state. The importance of this matter is therefore apparent. One of the real parties to this cause is one of the most important common carriers of freight and passengers engaged in interstate and intrastate business in the Union. The other party to this cause is one of the principal public service corporations engaged in the transmission and delivery of telegraphic messages in the United States. Both are servants of the federal government. Both are engaged in the performance of duties of grave moment to the people of this and other states. We are not therefore, on account of the importance of this cause, disposed to consider mere technical objections to the petition.

As we understand this matter, the court below was of the opinion that the telegraph company, by condemnation proceedings against the owners of private property between Decatur and Birmingham and Montgomery, could acquire such rights of way through the state to the various points in the state where its offices are now located as would enable it to continue the operation of its system at all points where it now or can in the future do business, and that therefore there could be no "actual necessity for the specific land" sought to be condemned. For this reason, as we understand it, the trial court was of the opinion that the telegraph company was not entitled to condemn a part of the railroad's right of way for its use for the purpose of maintaining a telegraphic line thereon and, acting upon that opinion, dismissed the original petition and the amended petition.

1. Section 23 of the present Constitution of the state provides that: "The exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the Legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner: Provided, however, the Legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved," etc.

The above section of the Constitution was construed by this court in Mobile & Girard Railroad Company v. Alabama Midland Railway Company, 87 Ala. 501, 6 So. 404.

Section 242 of the present Constitution of the state provides that "all railroads and canals not constructed and used exclusively for private purposes, shall be public highways," etc.

Section 239 of the present Constitution provides that any association or corporation organized for the purpose, and any individual, shall have the right to construct and maintain lines of telegraph and telephones in this state and connect the same with other lines; and the Legislature shall, by general law of uniform operation provide reasonable regulations to give full effect to this section.

Section 5817 of the present Code provides that "the right of way is granted to any person or corporation having the right to construct telegraph or telephone lines within this state to construct them along the margin of public highways."

The right of way above granted by the Legislature to a telegraph company to construct its lines along the margin of public highways cannot be lawfully exercised by a telegraph company, certainly in so far as the margin of a railroad company's right of way is concerned, in the absence of consent on the part of the railroad company, without condemnation proceedings. The right of way of a railroad company is its private property held by it for a public use, and the margin of its right of way cannot be subjected to such servitude (unless it consents thereto) without such condemnation proceedings. Mobile & Ohio Ry. Co. v. Postal Tel. Cable Co., 120 Ala. 21, 24 So. 408.

Section 3964 of the Revised Statutes of the United States (U.S.Comp.St.1901, p. 2707) provides that all railroads or parts of railroads which are now or may hereafter be in operation are post roads.

Section 5263 of the Revised Statutes of the United States (U.S.Comp.St.1901, p. 3579) provides that "any telegraph company now organized, or which may hereafter be organized under the laws of any state, shall have the right to construct, maintain, and operate lines of telegraph...