120 Ga. 268 | Ga. | 1904
On September 8, 1900, the Postal Telegraph-Cable Company caused to be served upon the Savannah, Florida & Western, Railway. Company a notice that condemnation proceedings would be instituted against it in order to secure the privilege of constructing a telegraph line along its right of way from Albany to Thomasville and from Thomasville to Valdosta. This notice was on the same day filed in the office of the clerk of the superior court of Chatham county. On September 20, 1900, the railway company filed a petition for injunction against the Postal Telegraph-Cable Company, alleging that there was no authority of law for the proposed condemnation proceedings, and that the statutes under which the latter company claimed the right to condemn were, for various reasons stated, unconstitutional and void. On the same day the railway company sent a response to the notice above referred to, therein advising the Postal Telegraph-Cable Company that in naming the person to act as the arbitrator selected by the railway company, it did so subject to its petition for injunction and without any prejudice whatsoever to its rights in the premises. Subsequently the railway company filed an amendment to its petition for injunction, and an interlocutory hearing was had thereon upon the 22d of November, 1900, the judge setting aside the restraining order previously granted and refusing to grant a temporary injunction. To this action of the judge the railway company excepted, and brought the case to this court for review, and on February 28, 1901, the judgment of the lower court denying the injunction was affirmed. See 112 Ga. 941. Shortly after the interlocutory hearing on the petition for injunction, and before the decision of this court was rendered, to wit, on December 31, 1900, the railway company appeared before the board of assessors who had been selected to conduct the condemnation proceedings, and, without waiving any of its rights under its petition for injunction, filed objections in writing to the further progress of those proceedings. One of these objections was that the notice of condemnation was legally insufficient, in that
To the motion, as amended, the Postal Telegraph-Cable Company filed its answer, admitting all the allegations, of fact on which the motion was based; and on June 8, 1901, the day on which the amendment was made and the answer filed, the court passed on the motion to dismiss and overruled the same. Later, on July 24, 1901, the railway company filed a motion to dismiss the appeal to the superior court entered by the Postal Telegraph-Cable Company, because that court was without jurisdiction to entertain the appeal, and because if any right to appeal existed under the law, the appeal should have been “ filed and tried in the superior courts of the counties of Dougherty, Mitchell, Thomas, Brooks, and Lowndes, and in each of them.” On the same day, the judge heard this motion and passed an order overruling the same. He also struck a plea to the jurisdiction, based on the same grounds, which had been filed by the railway company, and overruled a motion to dismiss the appeal, presented by that company, predicated upon the company’s contention that there was no provision of law authorizing such an appeal to be entered. Thereupon the railway company demurred to the notice of condemnation, insisting (1) that it did not locate with sufficient certainty the land sought to be condemned, and .(2) that the law did not contemplate or provide for any removal and replacement of the telegraph fixtures, such as stipulated in said notice, in the event the railway company might in the future desire to construct additional tracks, warehouses, or other structures on its right of way, and a change in the locatiofi of the telegraph poles or wires should therefore become expedient. The court overruled .this demurrer, the railway company was allowed to amend the answer which it had previously filed and urged before the board of assessors, and the case proceeded to a trial on the merits before a jury. The railway company then invoked a ruling as to the issues to be submitted to and passed on by the jury, and the court held that “the issue'to be tried by the jury [was] as to the value of the property taken or damage done to the right of way of the defendant in the construction and maintenance of a telegraph line as set out in the notice of condemnation.” On July 26, 1901, the jury returned a verdict reciting that they found (1) that “for taking
It is pertinent to add, as a part of the history of this litigation, that this is the fourth time it has been before this court, and that many of the questions now presented for determination have heretofore been adjudicated in favor of the Postal Telegraph-Cable Company. The petition for injunction filed by the Railway Company still remains pending in the court below, there having been as yet no final trial on the merits before a jury.
After the judgment refusing to grant a temporary • injunction was affirmed by this court (112 Ga. 941), the Railway Company filed an amendment to its petition, setting forth various reasons why the condemnation proceedings should be enjoined, and the judge granted a rule calling upon the Postal Telegraph-Cable Company to show pause why an injunction should not be granted. After hearing the parties, the judge declined to grant the application for a temporary injunction; the Railway Company excepted by writ of error, and this court affirmed the judgment of
In the construction of an amending statute, the law amended, as well ns tlie amending act, should be construed in such a manner as to give full effect to the legislative intent. The purpose of the legislature by the amending act was to avoid a number of condemnation proceedings, by providing for one trial instead of as many trials as there are counties traversed by the telegraph company. The right of appeal was not affected in any manner. The old law provided for the filing of the appeal in the office of the clerk of the superior court where the property is situated, because the condemnation proceedings were had in that county. If the condemnation proceedings are had in the county of the principal office of the corporation whose property is sought to be condemned, the award of the assessors should be filed in that county, and the superior court of the county where the award is filed would be the proper forum to which the appeal should be taken.
In arriving at the value of the land actually appropriated, the general.salable value of the right of way for other uses than that to which it is applied by the railway company can not be considered. While it is true that the railway company has the absolute fee, the right of way has no general market value so long as it is used by the railway company for railroad purposes. The appropriation to public use amounts to a withdrawal of the right of way from any use except what is necessary or ancillary to the operation of the railroad. The railway company is a creature of the law, it is an. artificial person with limited powers, and the scope of its powers is determined by its charter. The act of incorporation, while conferring powers, also imposes duties upon this legal entity. It owes a duty to the State and the public to exercise its corporate functions for the promotion of the purpose of its organization. So long as a railway company uses its right of way for the purpose of its incorporation it can not devote it to any other purpose than that of operating a railroad, or some purpose ancillary thereto. «Any other disposition of its right of way while it is discharging its duty to the public under the act of incorporation can not be presumed. The record does not disclose any intention, present. or prospective, on the part of the railway company to abandon its right of way, or to devote it to any other purpose that its use for a railroad. The railway company, in the operation of a .railroad, is performing a quasi-public function. On the faith of the discharge of this public duty, it was given the right to acquire, either by voluntary contract, or by condemnation, pri
That the right of way may possess peculiar advantages and benefits to the telegraph company in the construction and maintenance of its line is not a proper element in the estimate of damages. The telegraph company is under a legal duty to compensate the railway company for the damage done to it by the construction of its line of telegraph, and any supposed benefits which it may receive from using the right of way are of no concern to the railway company if the latter receives full and adequate compensation for the value of the land taken and the damage done to its property by the construction of the telegraph line. A burden not imposed by the telegraph line is not an element of damage. Likewise, the cost of clearing the right- of way, draining the same and keeping it free from obstructions, which was expense incurred by the railway company for the purpose of operating its railroad, is not to be considered in assessing the damages; because this expense is incurred, not as a result of the construction of the line of telegraph, but because it was necessary to the railway company in the safe conduct of its own business, to do this very work. The right of way is cleared, the natural growth is removed, not to provide a suitable situs for the construction of a telegraph line, but to facilitate and aid the railway company in the operation of its trains. This condition of things existed at the time the telegraph company sought to build its telegraph line, and only to the extent that the telegraph line interferes with the use of the right of way can the railway company recover damages. In the operation of its railroad, the railway company finds it necessary to burn off the grass and decayed vegetation and to keep down under
It is a general and fundamental principle.of the' law that damages, whether resulting from the breach of a contract or the commission of a tort, remote and speculative in their nature, can not be recovered. The bare suggestion that at some vague time in the future the railway company may lay additional tracks or build structures for railroad purposes is too remote.to authorize a recovery of damages resulting from such possible contingencies. Besides, in the present case the telegraph company expressly stipulates in its notice of condemnation that it seeks to occupy the railroad property with its line of telegraph subject to the right on the pait of the railway company to change its location on the right of way to such other place ,as will not interfere with the railway company, in the event the railway company should find it necessary to lay additional tracks or build structures on its right of way. Any inconvenience or annoyance resulting from the construction of the telegraph line, which is of such a character as to interfere in aty way with the operation of the railroad by reason of the construction of the telegraph line, may properly be considered by the jury in assessing damages; but the evidence must disclose the facts from which such inconveniences or annoyances result; no presumption of fact can he drawn that any special annoyance or inconvenience will result solely because of the construction of the telegraph line.
Plaintiff in error says that another Element of damages which was excluded from the consideration of the jury was the'rental value of the right of way, and the benefit it derived from its contract with the Western Union Telegraph Company. From what has been said, the right of way has no general salable value; it follows that it can have no general rental value. It can nob be presumed that its present contract with the Western Union Telegraph Company will continue indefinitely. The benefit to the railway company from its contract with the Western Union Telegraph Company can*not be considered in the estimare of dam
The railway company insists that the erection of the poles is a menace to the safe operation of its road. We are unable to see how a telegraph pole of less height than the distance from its location to the track can be considered a menace to the operation of the road. It is possible that as a result of a violent storm the poles may be blown down and across the track; but the possibility of such a result is so contingent that it is not a proper element in the assessment of damages. The fact that on a past occasion a tree located near the edge of the right of way was blown across the track by a storm affords no reason to conclude that a telegraph pole or poles may be blown across the track. ,'The instance cited arose'out of'the ordinary; it was not normal, and, possibly, may never occur again. Should an injury of this character result in damage to the railway company by reason of the defective or faulty construction of the telegraph line, it has an ample remedy for reimbursement; but it will not be presumed that such an injury may "result in. the ordinary course of affairs.
There is an essential difference between the various elements of damage which enter into the assessment of private property
The current of authority as to the measure of damages, where a telegraph company condemns a railroad right of way, is in accord with the foregoing views. Chicago, Burlington & Quincy R. Co. v. Chicago, 149 Ill. 457; Chicago & Northwestern Ry. Co. v. Town of Cicero, 157 Ill. 48; St. Louis & Cairo R. Co. v. Postal Telegraph Co., 173 Ill. 508; Mobile & Ohio R. Co. v. Postal Telegraph-Cable Co., 120 Ala. 21; Southwestern Telegraph & Telephone Co. v. Gulf, C. & S. F. Ry. Co., 52 S. W. 106; Texas & N. O. R. Co. v. Postal Tel.-Cable Co., 52 S. W. 108; Postal Tel. Co. v. Oregon S. L. R. Co., 65 Pac. 735; Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226; Mobile & Ohio R. Co. v. Postal Telegraph-Cable Co., 76 Miss. 731; Railroad v. Telegraph Co., 101 Tenn. 62; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Ohio Postal Tel.-Cable Co., 68 Ohio St. 306; 3 Joyce on Damages, § 2204.
Plaintiff in error contends that the verdict is only for nominal damages, and for a much smaller sum than the -evidence demanded. Witnesses testified as to the actual value of the land taken, allowing one square foot to the pole, and the verdict can be supported on this evidence, giving nominal damage for decrease in value of the use of the right of way for railroad purposes. In one of the Illinois cases cited (St. Louis & Cairo R. R. Co. v. Postal Telegraph Co., 173 Ill. 508), the jury returned a verdict for ninety-nine dollars for the damages sustained in erecting a telegraph line through five cdunties. The damage for opening a street over the railroad right of way in the populous city of Chicago was assessed at one dollar. The Supreme Court of the United States in the case of Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226, held that the measure of compensation was the amount of decrease .in the value of the use for railroad purposes by the use for the purpose of a street, being exercised jointly with the use of the company for railroad purposes; and the compensation would be nominal if the railroad’s use of its tracks were not unduly interfered with for railroad purposes by the crossing of the street.
Judgment affirmed.