63 F. 910 | U.S. Circuit Court for the District of South Carolina | 1894
The ruling upon the demurrer to the intervening petition of the Postal Telegraph Cable Company adjudged the right of that company to erect its line of telegraph upon and. along the right of way of the Atlantic & Pacific Railroad Company between the Needles and Mojave, in this judicial district, if such could be done without interference with the use of the right of way by the railroad company for ordinary travel. The reasons for-that determination were stated in the opinion filed by the court at.
In ascertaining who t a court, in any given case, has decided, the first important thing to do is 1o see what was before the court for decision. And so, in looking at the case of Railway Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, it is seen that it was an action of ejectment, involving (he right of possession of certain lands situated in section 16 of township 34 in the county of Labette, state of Kansas, Occupied and used by the Missouri, Kansas & Texas Kailway Company as part of its right of way, to which it claimed title under the act of congress of July 26, 1866, granting lands to the state of Kansas to aid in the construction of a southern branch of the Union Pacific Kailway & Telegraph Company from Ft. Riley, Kan., to Ft. Smith, Ark. 14 Stat. 289. That act granted to the sta te of Kansas, for the use and benefit of the railroad company, every alternate section of land, or parts thereof, designated by odd numbers, to the exbmt of 5 alternate sections per mile on each side of its road, and not exceeding in all 10 sections per mile: provided, that in case it should appear that the United States had, when the line of the railroad was definitely located, sold any of the sections, or- any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement had attached to the same, or that it had been reserved to the United States for any purpose whatever, then it should be the duly of the secretary of the interior to cause to be selected, for the purposes slated, from the public lands of the United States nearest, (o the sections specified, so much land as should be equal to the amount of the land sold, reserved, or other
The ninth clause of the contract of June; 1,1872, further provided, “Nor in any case will it [the Atlantic & Pacific Railroad Company] furnish to such other person or corporation facilities, aid, or assistance in constructing or maintaining such competing lines, which it may lawfully withhold.” The contention of the Western Union Telegraph Company is that the Atlantic & Pacific Railroad Company
It Avas stated by counsel for the receivers, in open court, that but for the proA’isions of the contract of June 1,1872, to which reference has been made, they would afford the facilities asked for bv the Postal Telegraph Cable Company, namely, the distribution of the necessary material betAveen the regular stations, and the furnishing of water to the force engaged in the construction of that line. The evidence sIioavs, Avhat is also judicially known to the court, that the right of Avay of the Atlantic & Pacific Company between rhe Needles and Mojav'e is OA'er a desert country, and that the railroad company, through the receivers, has possession and control of all the available water supply upon and along the right of wav. Evidence was also given to the effect that it is customary for the railroad company to furnish miners and others parties at and between their stations Avith water for their necessities, upon compensation paid therefor, and that the poles and other material can be. distributed, and Avator furnished to the petitioner, Avithout any inconA’enience, and in accordance Avith the usual and ordinary method of transacting the business of the railroad between the Needles and MojaA'e. That being so, and there being no valid contract preventing it, there can certainly be no valid reason why the receivers should not distribute the j>oles and other material between stations, for a just compensation. It is in evidence, and is also a matter of common knowledge, that the erection of another line of telegraph along the right of way in question Avill be a direct