Mobile & Ohio Railroad v. Postal Telegraph Cable Co.

HARALSON, J. This case is an appeal from the circuit court, to review the proceedings of that court in the trial of the cause on appeal from the'probate court, where they were instituted, for the condemnation of an easement in favor of the appellee company, to construct and operate its line of telegraph over the right of way of appellant company. The case is here on appeal by the railroad company, but the real party in interest, as reasonably appears from the proceedings, is the Western Union Telegraph Company, with which the railroad company has a contract for an exclusive line over its right of way ; and under its contract, said telegraph company may use the name of the railroad company, to resist the attempt of any other line, to construct on the right of way of the railroad any competing telegraph line. 1. The first ground of demurrer is without merit. We all know that a telegraph line such as that proposed in the petition to be extended is a public improvement, and that property proposed to be taken therefor is for a public use.—Scott & Jer. on Tel., § 26; Mills on Em. Dom., § § 14 a, 21; Lewis on Em. Dom., § 172. The constitution and statutes of this State recognize this fact.—Const. Art. XIV, § 11; Code, 1886, § § 1434, 1652, 1654, 3219. Moreover, the petition, sufficient without the averment to show the public character of the telegraph line, states in terms that it “is a public work or improvement.” 2. The 2d, 3d and 4th grounds, in setting up that the petition fails to aver facts showing or tending to show that the right of way proposed to be condemned is necessary for the proper construction of petitioner’s line of wire and poles, are also not well assigned. The petition makes a very clear case for the application of the rights — 32 — conferred by statute for the condemnation of this right of way. The authorities referred to to sustain these grounds of demurrer (M. & G. R. Co. v. A. M. R. Co., 87 Ala. 501; Anniston & C. R. R. Co. v. Jacksonville, G. & A. R. R. Co., 82 Ala. 297) are not in point. It is averred in the petition that the proposed line of telegraph will be constructed in a manner, fully stated, so as ‘‘to prevent any possible interference with any work or use of said railroad.” It is proposed to so construct the line, that it will not produce any material interference with the free exercise of- the franchise of the railroad company, nor extend to that part of its right of way which is in actual use. Common knowledge teaches, that there is ample space on the 100 feet of the railroad’s right of way, for two or more telegraph lines, without obstructing the free and ample use for railroad purposes. 3. The remaining grounds of demurrer,—5, 6, 7, 8 and 9,—are that there is no sufficient description given in the petition of the right of way proposed to be condemned. These grounds contradict the very full and definite allegations of the petition. It is difficult to conceive how ampler and fairer averments of what is proposed to be done by petitioner in establishing its line could have been made. The defendant on these averments, — as it was furnished with sufficient data to do,— entered into a minute calculation by its witnesses of the number of feet of land that -would be occupied by petitioner in the erection of its poles throughout the whole length of the line. The exact spots where the poles would be placed, and whether on the one side or the other of the road-bed, as necessities and conveniences of the railroad might be best subserved, could not, of course, be definitely stated, nor -was it necessary to do so. The same objection was raised against á similar petition in the case of the N. O., M. & T. R. R. Co. v. S. & A. T. Co., 53 Ala. 211; and was held not to be well founded. It -would seem after this, that there was no ground for complaint for want of information as to what part and how much of defendant’s right of way would be necessary for the establishment of the line of the telegraph company. 4. Whether the charter of the plaintiff company, purporting to be certified by the ‘ ‘Deputy Secretary of — 33 — State” of New York, was, under our statute, admissible in evidence, without further proof, we need not decide. The petitioner was- not required to prove the existence of its-charter, unless the same was denied-by plea verified by affidavit. . No such plea was interposed. — Acts, 1888-89, p. 57; Code, § 1803; Smith v. Hiles-Carver Co., 107 Ala. 272. 5. The 11th assignment of error is, “that the court erred in entering up an order condemning theproperty.” The contention of appellant as to this alleged error is, as stated in brief of counsel, that “the court below, without any proof whatever of a great many of the material allegations of the petition, and without a particle of testimony as to the value of the property, entered up an order condemning the property.” This objection seems to be in contradiction of the recitals of the record. On the 26th day of January, 1898, the judgment of condemnation was rendered in the cause as follows : “This cause coming on to be heard upon the application of-the plaintiff to condemn the right pf way set out in petition, in this cause, and upon hearing all the allegations of the petition and the legal evidence touching the same, it is . ordered and adjudged by the court that said application be and the same is hereby granted. Ibis further ordered that an issue be and the same is hereby made up under the direction of the court, to ascertain and assess before a jury the amount of damages and compensation which the defendant is entitled to receive by reason of the condemnation of the right of way prayed for in the petition in said cause.” On the da}’' following, the 27th day of January, 1898, the record" further recites, the parties came and an issue was made up, and a trial was had before a jury regularly impannelled for the purpose, and after hearing the evidence, under the charge of the court, rendered their verdict,.assessing the compensation tobe paid defendant at the sum of $50, and judgment was entered against the plaintiff for that sum, and for all the costs of the proceeding. No complaint has been, or can be, made by the appellant of this judgment; that it was entered against the plaintiff below for the damages assessed. It maybe well to suggest, that the statute does not seem to provide for — 34 — a personal judgment against a plaintiff in such a case, for the compensation assessed to be paid by him to the defendant, but merely for a decree or order of condemnation “upon the payment of the damages and compensation so assessed and reported, or the deposit of the same in court.”—Code of 1896, §§ 1719 (3212)-1721 (8216), Section 1722 (3218) of Code of 1896, provides within what time the plaintiff may make such payment or deposit, and further, that if he fails to pay the same within such time, the assessment shall ce,ase to be binding on the owner of the land, and the rights of the applicant shall determine thereunder, etc. There was ho legal obligation on the petitioner to accept the condemnation on the compensation assessed, but it was at liberty to abandon the same. 6. The railroad company, as has been well decided, would not be entitled to an increased value on account of proposed improvements or uses, if any, in contemplation of being made on the right of way. Possible, probable or imaginary uses are to be excluded. Such uses would be remote and speculative. Assessments should be of the value at the time of taking, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future.—Mills on Em. Dom., §§ 173, 174, and authorities there cited; Lewis on Em. Dom., § 480; Pierce on Railroads, p. 217; C. B. & Q. R. R. Co. v. Chicago, 149 Ill. 457; Jones v. N. O. & S. R. R. Co., 70 Ala. 233. The plaintiff, in its petition, proposed a condemnation for its uses, such as would not obstruct or hinder the railroad company in its business, or in its use of said right of way ; that it would erect its poles, twenty-six feet long, above the ground, at a distance of not less than thirty feet from the outer edge of said railroad track ; and in the event that said company should at any time desire to change the locality of its track, or to construct new tracks or side tracks, where the same do not now exist, the plaintiff would remove its poles at its own expense, to any other point on the said right of way as might be agreed on between defendant and plaintiff. In Jones v. N. O. & S. R. R. Co., 70 Ala. 227, a proceeding for the condemnation of a right of way of a railroad company, it was said, as to the proper measure of — 35 — damages : “The value of the land when taken, before the construction of the road, and before any injury to the land taken resulting from construction, and the injury, the diminution in value of the contiguous lands, is the true and just measure of compensation.—Lyon v. G. B. & M. R. R. Co., 42 Wis.538.” That was a case where a certain well defined quantity in a strip of land running through another’s premises was taken for the right of way of a railroad company. In such cases, the market value of the land enters necessarily into the estimate of compensation. In the case before us, a very nominal amount of the land constituting right of way is proposed to be taken, — only that part of it occixpied by the posts, one hundred axid seventy-five feet apart, leaving the way for all other purposes unobstructed. It is really an easement in an easement, a servitude, true, for which the compaxiy is entitled to some compensation under the constitutioxi. The railroad compaxxy, however, holds its right of way so far as is made to appear simply for railroad purposes, and is restricted ixx its use of the same for such pxxx'poses. Under this view of the estate that the railroad company has in its right of way, it is difficult to see how the damages sustained by the road caxx be anything more than nominal. Indeed, if we might weigh advantages axid disadvantages, a competing line would naturally aixd reasonably appear to be an advantage to the railroad company. To prevent any misconstruction, it is well to say, we are xxot passing upon any rights of the company, or others, not presented ixx this record, such as the interest of a company in lands to which it holds a fee simple title by purchase such as by its charter it may have authority to own ; nor the x'ights of the holders of contiguous lands, owning the fee in the lands over which the railroad has its right of way; nor the question of damages, when a railroad compaxxy has built a bridge over a stream and a telegraph company seeks to use the superstructure as a support for its fastenings and wires. Such questions are in no wise involved in this case, and are not before us. It has not been shown that the cpmpany holds the land, as a private individual, to devote it to any purpose it pleases, or to sell it at will at the highest pxdce it will — 36 — bring on the market. The land constituting the right of way really has no market value, so long as it is used for such purpose. It has been withdrawn, by the very uses of the company, from marketable lands ; and when there can be no market value of land by reason of its use as a part of an extensive business or enterprise, its value must be determined by the use to which it is applied, and necessarily not by any supposed market value it has.—I. C. R. R. Co. v. City of Chicago, 141 Ill. 509; C. B. & Q. R. Co. v. City of Chicago, 149 Ill. 457; C. B. & Q. R. Co. v. City of Chicago, 166 U. S. 226; Lewis on Em. Dom., § 485. Commenting upon the decision in the Illinois case last cited, — which was a case for the extension of a street across railroad tracks or. right of way, — the Supreme Court of the United States, in the case last cited, used language well adapted to the case in hand. They say : “The land as such was not taken, the railroad company was not prevented from using it, and its use for all the purposes for which it was held by the railroad company was interfered with, only so far as its exclusive enjoyment for the purpose of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a street. The Supreme Court of Illinois well said ‘that the measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for purposes of a street; such use of a street being exercised jointly with the use of the companies for railroad purposes. In other words, the company is to be compensated for the diminution in its right to use its tracks caused by the existence and use of the street.’ ” The Supreme Court of Illinois held in that case, that the trial court did not err in excluding evidence to show the general salable value of the land constituting the right of way included in the crossing, or its general value for other uses than that to which it was applied. The soundness of this principle was approved by the Federal Court, and it appears to be sustained by reason and authority.—149 Ill. 457; 166 U. S. 249; Mobile & O. R. R. Co. v. Postal Tel. Cable Co. Supt. Ct. of Tenn. Apr. Term, 1898, in MS.,—two cases tried and decided together; St. L. & C. R. R. Co. v. Postal Tel, Co., 173 Ill. 508. — 37 — The cases referred to from the Tennessee court, recently decided, were between the same parties as here ; the petition in each case, as appears, was identical in substance with the one in this case, and the main question as here presented, — that of damages to be allowed,— was there decided. One of those cases, from the county of Madison, was heard on appeal from the report of the jury of inquiry before the judge without a jury, and the other from the county of Gibson, from the judgment on verdict of a jury. In the first, the trial judge held that the measure of damages to the defendant was the amount of decrease in the value of the use of the right of way for railroad purposes, when it was jointly used for telegraph purposes, and that nothing but nominal damages'could be had; and in the other, the judge charged the jury that they could give as damages nothing except the value of the land occupied as post holes by the telegraph company, which was assessed at $12.60. The court affirmed the decision of the lower court in each case, on the ground that the railroad company was entitled to no more than nominal damages. In the last,—the Gibson county case,—they held, that the damages of $12.50 were assessed upon the. wrong basis,—the value of the'land occupied by the post holes of‘ the telegraph company,—but as they were nominal, an'd not complained of, the case would not be reversed for the error. The views announced by us in the foregoing opinion, find full support’ in these Tennessee cases. In the case before us, the jury assessed the damages against the telegraph company at $50.00. "We deem it unnecessary to review the assignments of error on the admission and rejection of evidence, and on the charges given and refused. Holding as we do, that the defendant, company was entitled to nominal damages only, and if in anything error may hhve intervened, it was error without injury. Affirmed.