242 Ill. 568 | Ill. | 1909
delivered the opinion of the court:
We regard this judgment as erroneous and contrary to the previous decisions of this court. The only land sought to be taken by appellant for its exclusive use was the land to be occupied by its poles. The poles upon which the wires were to be placed were two feet in diameter at the ground and twenty of them were to be set in the highway on appellee’s land. The spaces between the poles were not sought to be taken, but the- use thereof for the purposes of stringing, repairing and maintaining the wires was all that was contemplated or asked for. This use was not exclusive but was to be enjoyed by appellant in connection with the owner of the land. The compensation, therefore, appellee was entitled to for the use of the spaces between the poles was not the value of the fee, but was the amount of decrease in the value of the land resulting from the right of the appellant to use it jointly with appellee for the construction, repair and maintenance of its telegraph wires. Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, 149 Ill. 457.
In Lockie v. Mutual Union Telegraph Co. 103 Ill. 401, the petition sought to condemn a strip of defendant’s land eight and one-quarter feet wide for the erection, maintenance and repair of telegraph poles and wires. In discussing the compensation the land owner was entitled to, the court said (p. 402) : “By designating the width of the strip in the condemnation proceedings the company acquires no right to exclude the owner of the soil from the use of the land. That remains as it was before, except the company has acquired an easement on the strip condemned to so enter for the purpose of erecting and repairing the line. The only exclusive right of occupancy the company acquires by such a proceeding is the ground occupied by the poles erected for telegraph purposes. These are the rights intended to be conferred by the law and are all that were or can be acquired under it, and the judgment in this case conferred no more.”
The precise question here involved was fully considered and determined by this court in St. Louis and Cairo Railroad Co. v. Postal Telegraph Co. 173 Ill. 508. The contention of the parties in that case is stated by the court on pages 531 and 532, as follows: “In the first place, the appellee claims that the compensation to be paid to the appellants must be the value of the ground occupied by each of the telegraph poles erected upon the right of way; that the land taken is nothing more than those portions of it upon which the telegraph poles stand or into which they are inserted; that the rest of the compensation to which appellants are entitled, other than for the land thus taken, consists merely of the damages accruing to the remainder of the right of way by reason of the erection of the telegraph poles and the stringing of the wires upon the cross-arms thereon, and that as to the spaces between the telegraph poles over which the wires near the top of the poles are strung, such spaces are not land taken. On the contrary, the appellants contend that by the construction and operation of the telegraph line the appellee not only takes the ground occupied by the telegraph poles, but that the strip of ground as wide as the cross-bars, over which the wires are strung, is also land taken. In other words, the appellants claim that the appellee take^ that part of the right of way over which the wires, extending from pole to pole, are strung.” Upon that subject the court said (p. 533) : “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 cause 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 injure it for any other purpose than to erect telegraph poles and 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 line, but the telegraph company acquires no right to exclude the railroad company from the use of the land. The ownership of the railroad companies 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.”
We will not encumber this opinion by further quoting from that decision, but much more will be found in the opinion of the court pertinent to the questions involved in this case. We could not sustain the judgment in this case without overruling St. Louis and Cairo Railroad Co. v. Postal Telegraph Co. supra, and that we are not disposed to do, for in our judgment the correct rule is stated in that case. The court should have submitted the question of the amount of compensation appellee was entitled to, to the jury, under such competent evidence as the respective parties might introduce.
The judgment is therefore reversed and the cause remanded.
Reversed and remanded.
