85 Fla. 378 | Fla. | 1923
In a bill in equity brought by the railway company against the telephone company, it is alleged “that the defendant company -was incorporated under the laws of the State of Florida on or about the 23d day of November, A. D. 1904, and some years thereafter, the precise date being unknown to orator, ivithout instituting condemnation proceedings and without obtaining consent of complainant and in'defiance of complainant’s protest, constructed and erected and began the use of that certain line of telephone poles and two wires suspended thereon by brackets, which poles are spaced approximately - feet apart and are on the eastern side of the main
The prayer is:
“First: That an account may be had and taken by and under the direction and decree of this Honorable Court as to the truth of the allegations of this bill, and that the defendant, East Florida Telephone Company, a corporation under the laws of the State of Florida, may be decreed to have placed and erected its poles upon the right of way of your orator, as alleged in this bill, and to have strung its wires over, along, and across your orator’s right of way without first having condemned the property and compensated your orator therefor, and without the consent of your orator.
“Second: That upon final hearing of this cause your orator may have a mandatory injunction requiring the defendant to remove its poles off of your orator’s right of way between. Orange Heights, in Alachua County, Florida, and Lochloosa, in Alachua County, Florjda, and to remove its wires off of the said fight of way within a reasonable time, to be therein named and limited.
“Third: May it please Your Honor to grant unto your orator such other and further relief herein as may seem agreeable to equity and good conscience, and as the circumstances of the case may justify and warrant.”
An appeal was taken from an order overruling a demurrer to the bill of complaint.
Other sections prescribe the procedure in exercising the granted right of eminent domain.
The establishment of a telephone line of poles and wires upon a railroad right of way without consent or compensation duly secured is unlawful, and such establishment may under circumstances affording an equity be enjoined if timely and appropriate proceedings be duly taken. Moody v. Jacksonville, T. & K. W. R. Co., 20 Fla. 597; Seaboard Air Line Ry. v. Southern Inv. Co., 53 Fla. 832, 44 South. Rep. 351; City of Ocala v. Anderson, 58 Fla. 415, 50 South. Rep. 572; Indian River Steamboat Co. v. East Coast Transp. Co., 28 Fla. 387, 10 South. Rep. 480; 20 C. J. 1172. But the statute gives the telephone company the right of eminent domain in such a case, and after the telephone line has been constructed on the right of way and so used for a considerable and indefinite period of time, the railroad company protesting but taking no timely steps to enjoin such construction-and use until consent or compensation has been secured, a bill praying a mandatory injunction for the removal of- the telephone
The order overruling the demurrer to the bill of complaint is reversed without prejudice to an amendment to conform to the procedure approved in Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 South. Rep. 566; Tampa Electric Co. v. Heidt, 82 Fla. 176, 89 South. Rep. 431, or to an action to recover as damages the value of the right of way appropriated by the defendant as the facts may warrant.
If ejectment be brought to recover the portion of the right of way appropriated by the telephone company (15 Cyc. 25), the right conferred by the statute to condemn a right of way for the telephone line would remain. See Jacksonville, T. & K. W. Ry. Co. v. Adams, 28 Fla. 631, 10 South. Rep. 465. See also Mobile & O. R. Co. v. Postal Tel. Cable Co., 76 Miss. 731, 26 South. Rep. 370; 10 R. C. L. 152; 20 C. J. 747; Northern Pacific Ry. Co. v. North
Reversed without prejudice.
