Western Union Telegraph Company v. Louisville And Nashville Railroad Company

• Decision Date: 25 May 1915
• Docket Number: 22,551
• Citation: 108 N.E. 951,183 Ind. 258
• Parties: Western Union Telegraph Company v. Louisville and Nashville Railroad Company et al
• Court: Indiana Supreme Court

108 N.E. 951

183 Ind. 258

Western Union Telegraph Company v. Louisville and Nashville Railroad Company et al

No. 22,551

Supreme Court of Indiana

May 25, 1915

From Vanderburgh Circuit Court; Duncan C. Givens, Judge.

Condemnation proceeding by the Western Union Telegraph Company against the Louisville and Nashville Railroad Company and another. From a judgment for defendants, this appeal is prosecuted.

Affirmed.

J. E Williamson, Pickens, Moores, Davidson & Pickens and Geo. H Fearons, for appellant.

Philip W. Frey and G. R. DeBruler, for appellees.

OPINION

Lairy, J.

This action was brought by appellant company to condemn and appropriate a right of way for its telegraph poles and wires longitudinally upon the right of way of appellee, South, East and St. Louis Railway Company operated by the Louisville and Nashville Railroad Company. The action was filed in the Vanderburgh Circuit Court and affects that portion of the right of way which lies within Vanderburgh County. Appellees filed a number of objections; and, after hearing the evidence the court sustained the third, fifth, sixth, eleventh and thirteenth specifications of objection, and refused to appoint appraisers. The right of appellant to condemn the land described in its complaint for the purpose designated was thus denied. Appellant filed a motion for a new trial which was overruled.

The several alleged errors assigned and relied on for reversal present in different forms only a single question, and that is the right of appellant, under the pleadings and the proof to condemn the real estate described in the complaint.

By the statutes of this State, a telegraph company has a right to avail itself of the writ of assessment of damages for the purpose of acquiring land for the location and maintenance of its necessary poles and lines. §§ 5770, 929 Burns 1914, § 4166 R. S. 1881, Acts 1905 p. 59. It is well settled that where land has been once appropriated to an important public use, the power of eminent domain can not be invoked for the purpose of taking it for a second public use which is wholly inconsistent with the former and which would entirely supersede and destroy the use to which the land is already devoted, unless there is a statute expressly conferring such right, or from which such right arises by necessary inference. City of Ft. Wayne v. Lake Shore, etc., R. Co. (1892), 132 Ind. 558, 32 N.E. 215, 32 Am. St. 277, 18 L. R. A. 367; City of Valparaiso v. Chicago, etc., R. Co. (1890), 123 Ind. 467, 24 N.E. 249; Gold v. Pittsburgh, etc., R. Co. (1899), 153 Ind. 232, 54 N.E. 802. It seems to be equally well settled that a right to condemn conferred by a general statute authorizes, by implication, the second or subsequent appropriation of land already devoted to a public use in cases where such subsequent use is not inconsistent with the former and where such subsequent use is of such a character that it will not interfere with the use to which such land is already devoted. Cincinnati, etc., R. Co. v. City of Anderson (1894), 139 Ind. 490, 38 N.E. 167, 47 Am. St. 285; Postal Tel., etc., Co. v. Chicago, etc., R. Co. (1903), 30 Ind.App. 654, 66 N.E. 919; Baltimore, etc., R. Co. v. Board, etc. (1901), 156 Ind. 260, 58 N.E. 937, 59 N.E. 856.

The interference of a proposed subsequent use may be so complete and absolute as to entirely destroy and supersede such former use, or it may be so slight as to be merely nominal occasioning no inconvenience whatever. In either case there is no doubt as to the law with respect to a subsequent condemnation. In the first instance, the right to condemn does not exist unless it is conferred by statute, either expressly or by necessary implication; and, in the second instance, the right to condemn is inferred from a statute giving general authority to condemn. Between a slight and inconsiderable interference on the one hand and an interference which is so complete and absolute as to entirely destroy and supersede a former use on the other, cases may be found presenting all shades and degrees of interference and inconvenience. In cases where the subsequent use for which the appropriation is sought is not of such a character as to destroy the former use but is of such a character as to interfere with it to a greater or less extent, the rule is not so apparent. Under the authorities it seems that a slight or inconsiderable interference with a former use may be...