Southwestern Bell Telephone Co. v. Biddle

Kirby, J., (after stating the facts). .Appellant insists that the court should have directed a verdict in its favor, it being undisputed that the line of poles was placed on the strip of land condemned by the Highway Department for changing the highway, which had authority under the statute, and granted it permission to erect the poles where they were placed, and that, having done so, they were not liable to the payment of any damages to appellee for their erection upon such right-of-way. The statute provides, § 3989, Crawford & Moses’ Digest, for construction and operation of telegraph and telephone, etc., lines “along and over the public highways * * * and streets of the cities and towns of this State, and on and over the lands of private individuals * * * provided the ordinary use of such public highways, streets, etc., he not thereby obstructed, * * * and that just damages shall be paid to the owners of such lands, railroad and turnpikes by reason of the occupation of said lands, etc., * * * by said telegraph or telephone corporations.” The relocation of highway No. 67 running along in front of appellee’s property was made pursuant to an order of the county court of Hot Spring County in 1930. The Constitution (art. 7, § 28, Constitution of 1874) and our statute (§ 5249, Crawford & Moses’ Digest) gives the county courts exclusive authority to open new roads and to make such changes in old roads as they may deem necessary and proper. Our court has held that said statute authorizes telephone companies to construct and operate and maintain its lines along and over the public highway and streets of the cities and towns, provided “the ordinary use of such highways and streets be not obstructed by reason of the occupation by said telephone companies.” Ahrent v. Sprague, 139 Ark. 416, 214 S. W. 68; St. Louis, I. M. & S. Ry. Co. v. Batesville & Winerva Telephone Co., 80 Ark. 499, 97 S. W. 660. The authority given by the said statute (§ 3989, Crawford & Moses’ Digest) for telephone companies to construct, operate and maintain their lines over the public highways, etc., only gives them the free use of such highways, provided they be not obstructed thereby, so far as the State’s interest and that of the public is concerned, expressly providing that “just damages shall be paid to the owners of such lands, * * * by reason of the occupation of said lands, * # * by said telegraph or telephone companies.” The statute could not authorize the free use of appellee’s land in any event in this instance by the telephone company, since the injury complained of was not for erection of the poles and lines upon an old highway, already long established, but upon appellee’s lands just being taken for a change in the location of such highway. Article 2, § 22, Constitution of 1874. It is not denied that appellee had no notice of the condemnation proceedings, and certainly the statute did not contemplate that the landowner in a proceeding for condemnation of his lands for public use should not he allowed damages for the value of it, nor would he be expected to he hound hy the allowance made for damages of which he had no notice, nor does the statute contemplate that he should he held to look to the county alone for payment of damages for his land taken for such public use. We also think that the erection of a telephone line upon the public highway along lands of adjoining owners, in which the public only has an easement for use as a highway, would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted. The testimony for determining the value of such lands and the damage thereto is largely a matter of opinion of the witnesses, who are familiar with the location of the lands and the use for which they are best suited, having weight only as the reason given by such witness for such opinion of value may tend to convince the jury. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440. The evidence is sufficient to support the verdict for damages, and the appellee could not evict the telephone company from the premises, and was limited to a suit for damages, as his remedy, not having been compensated therefor under the provision of the statute, § 5'249, Crawford & Moses’ Digest. We find no error in the record, and the judgment is affirmed.