Mobile & Ohio Railroad v. Postal Telegraph-Cable Co.

Whitfield, J., delivered the opinion of the court. The only question of importance in this case is what is the true measure of damages in cases of this character ? In St. Louis, etc., Ry. Co. v. Postal Telegraph-Cable Co., 173 Ill., 508, a case almost identical with this, that court, in the course of an ably reasoned opinion, said: “The measure of damages, therefore, suffered by the railroad company is not the value of the land embraced within the right of way between the poles and under the wires, but the measure of damages is the extent to which the value of the use of such spaces by the railroad company is diminished by the use of the same by the telegraph — 746 — company for its purposes. ’ ’ Citing Chicago, B. & Q. R. R. Co. v. Chicago, 149 Ill., s.c. 166 U. S., 226. Again, the court says: c£The spaces over which the wires are strung from pole to pole are not taken by the telegraph company. Such damage as the construction and operation of the telegraph line causes to the spaces between the poles the appellants are entitled to recover. The telegraph company does not acquire, by the judgment of condemnation, the fee to any portion of the right of way. Any construction which holds that it does acquire the fee is not sanctioned by the language of the act in relation to telegraph companies. The act does not confer the right to use the land condemned for any other purpose than for telegraph purposes. The company cannot take possession of it or use it for any other purpose than to erect telegraph poles, and to suspend wires upon them, and to maintain and repair the same. The company will have the right to enter upon that portion of the right of way which is between the telegraph poles and under its wires for the purpose of repairing its lines. But the telegraph company acquires no right to exclude the railroad company from the use of the land. The ownership of the railroad company remains as it was before, while the telegraph company merely acquires an easement upon what it condemns for the purpose of entering thereon in order to erect and repair the line.5 ’ St. Louis, etc., v. Postal Telegraph-Cable Co., 173 Ill., 508 (1898). In this case, that court sustained a judgment for nominal damages, and held that the principle announced in the C., B. & Q. case applied to and should govern that case. In the case of Mobile & Ohio Ry. Co. v. Postal Telegraph-Cable Co., 46 S. W. Rep., 571, the supreme court (Tennessee) sustained a judgment for nominal damages only, and that court said: £ ‘ This is simply a case where the railroad is not using-the space occupied by the posts and wires, and where it cannot convey it to another for any purpose, in which only nominal damages arise.” In that case nominal damages only were — 747 — awarded to the railroad company in a condemnation proceeding by the telegraph company for the right to construct, maintain and operate its telegraph lines along and upon the right of way of the railroad. There were two causes at the same time before the court on appeal by the railroad company between the same parties and involving the same question. Under the statutes of Tennessee a separate condemnation proceeding was required by the telegraph company in each circuit court district through which the road ran, hence there were two causes appealed from two separate circuit court districts, which were heard by the supreme court together. The court said: “The causes are before us on appeal by the railroad company, but the real party in interest is the Western Union Telegraph Company, a competing line, with which the railroad has a contract for an exclusive line over its right of way, and which has a right, under its contract, to use the name of the railroad company in any suit to resist the attempt of any competing line to construct any other lines upon its right of way.” . . . Again this court says: “It does not acquire any estate in fee. It only acquires an easement or right of way, and this only for railroad purposes. While its right of way extends to a certain distance on each side of its track, it has no right to occupy the way beyond its track, cuts and fills, or to such distance and to such an extent only to maintain its track and operate its trains. It can only go beyond these limits for necessary railroad purposes. It cannot sell, transfer, encumber or use its right of way except as its necessities and conveniences may demand for the proper operation of its road. It cannot license the appropriation of any part of such right of way to private business purposes nor to public purposes, except so far as needful and helpful to the operation of the road itself. Jones on Easements, sec. 383.” “Its right of way can, therefore, have no market value, because it cannot be placed upon the market, either by private sale or public outcry. A railroad company is entitled to have — 748 — a right of way by process of condemnation, because it is a work of internal improvement, a (quasi public use. ‘‘But it has been held that the land already taken by the exercise of eminent domain for public use, and actually used for that purpose, may be taken by legislative authority for other public uses not inconsistent with or destructive to the former use. Mills on Em. Dom., sec. 15, and cases there cited ‘‘ It is not insisted in this case that the use of the right of way and construction of the telegraph lines will be any detriment or obstruction to the railroad, but, on the contrary, it is shown it would be a benefit and convenience. A telegraph line along a railroad is not only a convenience, but a necessity, and is very properly treated as a railroad appurtenance. “A railroad company may, therefore, construct a telegraph line along its right of way or permit another to do so, but it acquires and can confer no exclusive right to do so. Western Union Tel. Co. v. Baltimore & Ohio R. R. Co., 19 Fed. Rep., 660; Western Union Tel. Co. v. B. & O. S. W. R. R. Co., 11 Fed. Rep., 1; Western Union Tel. Co. v. American Union Tel. Co., 38 Am. Rep., 781; Pensacola Tel. Co. v. Western Union Tel. Co., 3 Otto, 124; 3 Am. & Eng. Enc. L. (1st ed.), 885, 886. “Under this view of the estate and interest which railroad companies have in their right of way, it is difficult to see how the damages sustained by the road can be anything but nominal. “ It is said with much earnestness, and with some degree of plausibility, that it would be unjust to allow a telegraph company to plant its poles along the'right of way when the railroad company had expended thousands of dollars to clear and keep it free of obstructions and yet pay nothing for the privilege. But this view is more specious than sound, for the railroad must incur this expense for its own purposes, whether the telegraph line is there or not, and must keep its right of way clear of obstructions, whether it is occupied by a telegraph — 749 — line or not, and there is no greater burden or expense because of the presence of the telegraph line. “The trial judge in the Madison county case held: “The measure of damages to the defendant is the amount of decrease in value of the use of the right of way for railroad purposes when it is jointly used for telegraph purposes. .This rule was no doubt adopted from the rule laid down b}^ the supreme court of the United States in the case of C. B. & Q. R. R. Co. v. The City of Chicago, 166 U. S., 248.” And the supreme court of Alabama, in the case of M. & O. Ry. Co. v. Postal Tel.- Cable Co., 24 So. Rep., 408, appeal from the circuit court of Mobile county, Justice Haralson for the court, said: “ This cause 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 appears from the proceedings, is the Western Union Telegraph Company, with which the railroads have 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. ’ ’ £ £ In the case before us a very nominal amount of land constituting right of way is proposed to be taken—only that part of it occupied by posts, one hundred and seventy-five feet apart, leaving the way for all purposes unobstructed. It is really an easement in an easement,, a servitude, true, for which the company is entitled to some compensation under the constitution. The railroad company, however, holds its right of way so far as is made to appear simply for railroad purposes, and is restricted in its use of same for such purposes. , Under this view of the estate that the railroad company has in its right of way, — 750 — it is difficult to see how the damages sustained by the road can be anything more than nominal. Indeed, if we might weigh advantages and disadvantages, a competing line would naturally and reasonably appear to be an advantage to the railroad company. “It has not been shown that the company holds the land as a private individual, to devote it to any purposes it pleases, or to sell it at will at the highest price it will bring on the market. The land constituting the right of way really has no market value so long as it is used for such purposes. It has been withdrawn by the very uses of the company from marketable land; 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. Illinois Cent. R. R. Co. v. City of Chicago, 141 Ill., 509; Chicago, B. & Q. R. R. Co. v. City of Chicago, 149 Ill., 457; Chicago, B. & Q. R. R. Co. v. City of Chicago, 166 U. S., 226; Lewis on Em. Dom., sec. 485. Commenting on the decision of the Illinois case last cited, which was a case for the condemnation 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 ail the purposes for which it was held by the railroad company was not 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 company for railroad purposes. In other words, the company is to be compensated for the diminution in its right to — 751 — 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 saleable value of the land constituting the right of way included .in the crossing, or its general value for other uses than that to which ir was applied. The soundness of this principle was approved by the federal court, and it appears to be sustained by reason and authority. Chicago, etc., R. R. Co. v. City of Chicago, 149 Ill., 457, s.c. 166 U. S., 249; Mobile & O. R. R. Co. v. Postal Tel. Co., supreme court of Tenn., April term 1898, in MS.'—two cases tried and decided together, 46 S. W., 571. We approve the principles announced in these cases, except that we do not say that the damages are merely nominal. We adopt the rule as first above stated in St. Louis, etc., Ry. Co. v. Postal Telegraph- Cable Co., 173 Ill., at p. 534, to wit: “The measure of damage, therefore, suffered by the railroad ■company is not the value of the land embraced within the right of way between the poles and under the wires, but the measure of damages is the extent to which the value of the'use of such spaces by the railroad company is diminished by the use of the same by the telegraph company for its purposes. ’ ’ This is the true measure of damages in cases of this character. In respect to the proposition that the railroad company might, in future, possibly change its route—whether with or without legislative permission—and, in the future, ‘£ use the lands for purposes other than a right of way,” that this possible use should be taken into account as an element of damages. Mr. Justice Harlan, speaking for the United States supreme court,' said, in Chicago, etc., R. R. Co. v. City of Chicago, 166. U. S., at p. 249: “Such a possibility was too remote and contingent to have been taken into account, while, as held in Boom Co. v. Patterson, 98 U. S., 403, 408, the general rule is that £ compensation is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as — 752 — may be reasonably expected in the immediate future, ’ it is well settled that mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded”—citing the authorities. This is undoubtedly the sound view. Again, Mr. Justice Harlan puts the point with great clearness in same case at p. 258, saying: “Compensation was awarded to the railroad company upon the basis of the value of the thing actually appropriated by the public—the use of the company’s right of way for a street crossing, having regard to the purposes for which the land in question was acquired and held, and was always likely to be held. In the case of individual owners, they were deprived of the entire use and enjoyment of their property, while the railroad company was left in the use and possession of its property for the purposes for which it was being used and for which it was best adapted, subject only to the right of the public to have a street across it. In this there was no denial of the equal protection of the laws, etc. ’ ’ The doctrine of Boom Co. v. Patterson, 98 U. S., 402, has no application to this case. Patterson owned his island absolutely, to be used or sold for any purpose he pleased. His use of it was not limited as is the use of its right of way by a railroad. The difference in the nature and character of the uses to which the property in the two cases may be put, makes the difference in the elements of damage, proper, respectively, in the two kinds of cases. It was proper to consider the “adaptability [p. 409] of the lands for the purpose of a farm,” in Patterson’s case, because that was, under the law, a use to which as owner in fee, unrestrictedly, he could put it. So far as the contention that the railroad company might in the future conclude to lay other tracks, or side tracks, and that if it did, the telegraph poles would be in the way, ‘‘ is concerned, it is enough to say that the appellee agrees, in such case, to ‘ remove such poles to such other point or points on the said right of way adjacent thereto, which shall be designated by said railroad company, upon reasonable notice, and at the expense of the tel — 753 — egraph company, ’ and we think, with the supreme court of Illinois (St. Louis, etc., Ry. Co. v. Telegraph Co., 173 Ill., p. 535), that this is a valid, enforceable stipulation. The exclusive contract between the railroad and the Western Union Telegraph Co., was of course void, as in restraint of trade and as creating-a monopoly, as has been repeatedly held. Appellant relies—as to the measure of damages—on Postal Telegraph- Cable Co. v. A. & V. Ry. Co., 68 Miss., p. 314. It is not entirely clear what rule is meant to be declared therein. A, single sentence covers all that is said. There are no authorities cited, and there is no discussion. It is to be remarked that the law on this subject—applicable to damages caused in this way by this modern agency—is of very recent development. The doctrine announced by Mr. Justice Harlan for the United States supreme court above, and of the supreme courts of Illinois, Tennessee and Alabama, is undoubtedly the only correct view, and if the case of Postal Telegraph- Cable Co. v. Ala. & V. Ry. Co., 68 Miss., 314, conflicts with what we have herein announced, it is to the extent of such conflict hereby overruled. The right result was reached in the court below, and the judgment is Affirmed.