63 F. 513 | U.S. Circuit Court for the District of Southern California | 1894
In this cause the Postal Telegraph Cable Company filed a petition setting forth that it is a corporation organized January 25, 1880, under and by virtue of the laws of the state of New York, for the purpose of owning, constructing, using, and maintaining lines of electric telegraph within and also beyond the limits of that state; that, under its articles of incorporation, the petitioner may, by its line or lines of telegraph, connect each and every city, town, and village within the United States where a post office has been established, and each and every such city, town, and
The petition further alleges that the petitioner is about to com
“Ninth. The said railroad company further agrees to grant tne said telegraph company, as far as it has the right and power so to do, the exclusive right of way for telegraphic purposes on and along the line of its road, and will not permit any other person or corporation to construct a line or lines of telegraph along said railroad, nor, in any case, will it furnish to such other person or corporation facilities, aid, nr assistance in constructing or maintaining such competing lines which it may lawfully withhold.”
The petition further alleges that by said contract of June 1, 1872, facilities are extended by said Atlantic & Pacific Railroad and said receivers to the Western Union Telegraph Company which are by said railroad company and by said receivers denied to the petitioner under like conditions and circumstances; that the receivers aver that but for the existence of the aforesaid contract of June 1, 1872, they would grant to petitioner the rights claimed by it for a just and' reasonable compensation, to be agreed upon between them; and they pray for an order or decree of the court directing the receivers to accord to the petitioner the alleged rights and privileges.
In response to the petition, the counsel for the receivers appeared, and stated in open court that by reason of the contract of June 1, 1872, between the Atlantic & Pacific Railroad Company and the Western Union Telegraph Company, they would authorize the attorneys of the Western Union Telegraph Company to appear for and contest in the name of the Atlantic & Pacific Railroad Company the intervening petition of the Postal Telegraph Cable Company; and, accordingly,- the attorneys of the Western Union Telegraph Company filed, in the name and on behalf of the Atlantic & Pacific Railroad Company, a demurrer to the intervening petition, upon these grounds: (1) That the court is without jurisdiction to entertain or grant the prayer of intervener’s petition in the summary manner proposed. (2) For that the petition of intervention raises issues wholly foreign and collateral to those involved in the original suit of The Mercantile Trust Company v. The Atlantic & Pacific Railroad Company, and shows no right, title, or interest in or to the subject-matter of the original suit opposed to either of the parties to such suit, or both of them. (3) For that there is a defect of parties, it appearing from the petition that the Western Union Telegraph Company has, or claims to have, rights which would be affected by the ■ order sought; furthermore, that it appears from the petition that the right of way .of the said several railroad companies is at least in part over and through private grounds; and that an additional burden or servitude placed upon said right of way would entitle the owners of abutting property to a hearing and compensation; and that all of said
The suit in which the intervening petition was filed was brought by the Mercantile Trust Company of New York, as the holder in trust of certain bonds issued by the defendant railroad company, to fore close a mortgage given as security for their payment, and to obtain the appointment of a receiver of the mortgaged property pending the litigation. The suit was therefore one in equity; and the California statute respecting intervention, relied on in support of the demurrer, does not, I think, have any application to the present proceeding. The property in question being in the hands of the officers of the court, there is no more appropriate way in which to present the alleged rights of the Postal Telegraph Company than by an intervening petition. A similar practice has been several times sustained by the supreme court. Vault Co. v. McNulta, 153 U. S. 554, 14 Sup. Ct 915; Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27; Joy v. City of St. Louis, 138 U. S. 1, 11 Sup. Ct. 243. See, also, High, Rec. §§ 254, 255; Kennedy v. Railroad Co., 3 Fed. 97.
The primary right claimed by the petitioner is the right to erect a line of telegraph on and along that-portion of the right of way over the public, domain extending from the Needles to Mojave, in this judicial district, granted to the Atlantic & Pacific Railroad Company by the act; of congress of July 27, 18(5(5, entitled “An act granting lands to aid in the construction of a, railroad and telegraph lino from the states of Missouri and Arkansas to- tin* Pacific coast.” 14 Stat. 292. By that act the Atlantic, & Pacific Railroad Company was incorporated, and authorized and empowered to lay out, locate, and construct, furnish, maintain, arid enjoy a continuous railroad and telegraph line, with the appurtenances—-
“Beginning at or near the town of Springfield, in tlie state of Missouri, tlience to the western boundary line, of naid state, and thence by the most eligible railroad route as shall ho determined by said company "to a point on the Canadian river; thence to the town of Albuquerque, on the river Del Norte, and thence by way of the Aqua Brio, or other suitable pass, to the headwaters of the Colorado Chiquito, and thence, along the 35th parallel*518 of latitude, as near as may be found most suitable for a railway route, to the Colorado river, at sucli iioint as may be selected by sucli company for crossing; thence, by the most practicable and eligible route, to tbe Pacific [ocean].”
By the second section of the act it was enacted:
“That the right of way through the public lands bo, and tbe same is, hereby granted to the said Atlantic & Pacific Kailroad Company, its successors and assigns, for the construction of a railroad and telegraxih as proposed. * * * Said way is granted to such railroad to the extent of 100 feet in width on each side of said railroad where it may pass through the public domain, including all necessary grounds for station buildings, workshops, depots, machine shops, switches, side-tracks, turn-tables, and water stations. * * *”
The eleventh section of the act provided that said Atlantic & Pacific Railroad shall be a post route and military road, subject to the use of the United States for postal, military, naval, and all other government service, and also subject to such regulations as congress may impose restricting the charges for such government transportation. At the time of the incorporation of the Atlantic & Pacific Railroad Company, and of the above-mentioned grant to it, there was, and ever since has been, in force, the act of congress of July 24, 1866, incorporated into the Revised Statutes as section 5263, which reads as follows;
“Any telegraph company now organized, or which may hereafter be organized, under the laws of any state, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of tbe United States, over and along- any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with ordinary travel on such military or post roads.”
That act has been the subject of consideration in several cases relied on in support of the demurrer; among them, a case decided in 1888,' by Judge Allyn, of the second judicial district of the then territory of Washington, a pamphlet copy of whose opinion I have been favored with. That was a suit for an injunction brought by the Pacific Postal Telegraph Cable Company against the Northern Pacific Railroad Company et al., to restrain that company from interfering with the construction by the postal company of its line of telegraph along the right of way of said railroad company from Ivalama to Tacoma. A portion of the right of way there in question was obtained by the defendant Northern Pacific Railroad Company under and by virtue of its grant by congress of July 2, 1864, which grant, in respect to the right of way, and in respect to the route being made a post and military road, was precisely similar to that made to the Atlantic & Pacific Railroad Company. It was there distinctly held that a telegraph company embraced by the terms of section 5263 of the Revised Statutes, and which accepted its provisions, is not thereby granted the right to construct a line of telegraph along that portion of the right of way of the Northern Pacific Railroad Company granted to it by the act of Congress of July 2, 1864. The court in that case concluded that the portion of the right of way
“The right to construct, mniniain, and operate linos of telegraph through anel over any portion of the public domain of the United ¡-hates, over and along- any of the military or post roads of the United Hiatos which have been or nuiy hereafter he declared such by law, miel oven, under, or across die navigable streams or waters of the United Stall's: but such lines of telegraph shall be so constructed and maintained as nor to obstruct the navigation of such streams and waters or interfere with the ordinary travel on such military or post roads.”
Every telegraph company, in order to obtain the benefits of that; act. was required to accept; in writing the conditions imposed by it, which give to the business of the several departments and officers of ihe government priority over all other business of such company, and at rates to be fixed by an officer of the government, and confers upon the government the privilege of, purchasing ihe lines of such eompanv at an appraised value. Act July 24, 1866, 2, 3 (Rev. St. §§ 5266, 5267).
In the case of Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1, it; was insisted 1liat the grant contained in the act of July 24, 3866 Rev. St. § 5263), extends only to such military and post roads as are upon the public domain. But the supreme court, in answering that contention, said:
*520 “This, we think, is not so. The language is: ‘Through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of congress, and over, under, or across the navigable streams or waters of the United States.’ There is nothing to indicate an intention of limiting the effect of the words employed, and they are therefore to be given their natural and ordinary signification. Head in this way, the grant evidently extends to the public domain, to military and post roads, and the navigable waters of the United States. These are all within the dominion of the national government to the extent of the national powers, and are therefore subject to legitimate congressional regulation.”
This law, as has been said, was in force when the grant to the Atlantic & Pacific Railroad Company was made; and, as the act creating that ‘company and making that grant made the Atlantic & Pacific Company a post and military road, and did not exempt it from the operation of the act of July 24, 1866, it follows, I think, that the Atlantic & Pacific Railroad Company took its grant subject to the provisions of the act of July 24,1866. The Atlantic & Pacific Company is undoubtedly entitled to full protection of the right of way granted to it to the extent of its necessary and ordinary uses; for, as has been seen, the grant to telegraph companies expressly provides that such lines of telegraph shall not be so constructed or maintained as to interfere with the ordinary travel on the military or post roads. But the full protection of those rights does not exclude from its right of way any telegraph company embraced by the act of July 24, 1866, and which has accepted its conditions, whose lines of telegraph can be so constructed and maintained as not to interfere with the ordinary travel on such roads.
Entertaining these views in respect to the congressional legislation upon the subject, it is unnecessary to consider thaiwportion of the contract of June 1, 1872, by which the Atlantic & Pacific Railroad Company undertook, so far as it could, to confer upon 1he Western Union Telegraph Company the exclusive right- for telegraphic purposes on and along its right of way. Whether the facilities asked for by the petitioner are within the scope of the ordinary duties of the Atlantic & Pacific Railroad Company can be best determined upon the coming in of the answer and the making of the proof. Demurrer overruled.