Postal Telegraph-Cable Co. of America v. Nolan

162 P. 169 | Mont. | 1916

MR. JUSTICE HOLLOWAY

delivered the opinion of the' court.

For a considerable period of time the Postal Telegraph-Cable Company has maintained its telegraph lines from Butte through Silver Bow junction to points within and without this state, and has conducted a general telegraph and cable business, sending messages to and receiving messages from points throughout the world. For two years or more the defendants have owned the Pioneer and Jessie Placer claims, located between Butte and Silver Bow. Prior to the fall of 1914 the telegraph company’s pole line and wires followed generally the road between those two points and crossed the Pioneer claim. About November, 1914, the company changed the route of a portion of its line and crossed the Jessie Placer without having obtained a right of way. Negotiations failed to settle the controversy which followed, and defendants destroyed a portion of the line across the Jessie claim and upon their threats to prevent the company from repairing the line, or using the line over either claim, this suit was instituted to secure an injunction. About the same time plaintiff instituted a proceeding in eminent domain to condemn the right of way occupied by it over each of those placer claims. A hearing was had in this suit upon plaintiff’s application for an injunction pendente lite, but the application was denied, the order to show cause was discharged and a temporary restraining order theretofore issued was dissolved. From the order plaintiff appealed.

[1-3] The application for the temporary injunction was addressed to the sound, legal discretion of the trial court, and unless it is made to appear that such discretion was abused, the order will be approved. The purpose of an injunction pendente lite is to maintain the status quo until the relative rights of the parties can be determined by a trial on the merits. (Donlan v. Thompson Falls Copper & Mining Co., 42 Mont. 257, 112 Pac. 445.) To secure an injunction, the party applying for it has the burden of establishing a prima facie right to the relief. To apply these rules in the present instance, it is necessary to consider the relationship of the plaintiff to each of the placer claims separately.

[4] 1. Pioneer Placer. It .appears reasonably certain from the evidence introduced upon the hearing below that the plaintiff’s pole line and wires have been in place and in constant use over the same course across the ground now occupied by the Pioneer Placer for at least sixteen years, and that the Pioneer Placer was not located until about 1904. When that claim was located, the ground must have been open, public land of the United States, and while it is not necessary or proper — in advance of a trial of this cause upon the merits — to determine whether plaintiff has a right of way over that claim by virtue of the congressional grant contained in section 5263, U. S. Rev. Stats. (7 Fed. Stats. Ann., p. 205; U. S. Comp. Stats. 1913, sec. 10,072), it is sufficient for the purposes of this appeal to know that plaintiff was in the actual occupancy of the right of way for its lines over this property, before the claim was located and at a time when the ground was public land to which the congressional grant would apply under appropriate circumstances. Added to this, the fact that plaintiff is a public service corporation and that the character of its business is such that public interest will suffer from an interruption, the case-made presents a proper subject for equitable interference by injunction, until such time as the relative rights of the parties can be heard and determined upon the merits. (Pennsylvania R. Co. v. Ohio River etc. R. R. Co., 204 Pa. 356, 54 Atl. 259; Gurnsey v. Northern California Power Co., 160 Cal. 699, 36 L. R. A. (n. s.) 185, 117 Pac. 906.)

[5] The trial court was doubtless influenced by the fact that upon this hearing plaintiff introduced in evidence its complaint in the condemnation proceedings, and thereby disclosed that by seeking -to condemn the same right of way over the Pioneer Placer which it now claims, it impliedly admits defendants ’ ownership and the absence of any right on its own part. However inconsistent these positions may appear on the face of the records, we think the allegations of the complaint in the condemnation proceedings cannot be held to amount to an admission that plaintiff is a trespasser upon this claim. It is possible to reconcile the allegations of the complaint with the contention now made, and apparently sustained by the evidence, that plaintiff’s original entry upon the ground now covered by the Pioneer Placer was made under some color or claim of right.

[6] 2. Jessie Placer. The evidence discloses that plaintiff erected its telegraph line across the Jessie Placer in the fall of 1914 at a time when the ground was held by defendants under patent from the United States; that the work was all done and the line installed and in operation before any of the defendants knew that an invasion of their property was contemplated; that no attempt was made to secure a right of way; that no permission was sought for the entry upon this claim and no offer of compensation made. The plaintiff appears to be a naked trespasser upon this ground, without even a semblance of a claim to the right of way occupied by it and without any defense whatever for its high-handed, unlawful act. If the maxim, “He who comes into a court of equity must come with clean hands,” ever possessed any virtue, this case presents circumstances which command its application.

In laying the foundation for its application for equitable relief, plaintiff disclosed that its property which it seeks to have protected is upon defendants’ land without a semblance of right. It cannot be heard to urge .the public character of its business as a justification for its trespass. “No one can take advantage of his own wrong.” (Eev. Codes, see. 6185.) While tacitly-admitting its wrongful occupancy of this claim, plaintiff nevertheless insists that having commenced condemnation proceedings to condemn the right of way, a court of equity, out of consideration for the public character of its business, ought to maintain the status quo until the question of damages can be determined. It would seem to be sufficient answer to say that plaintiff should have reversed the order and secured the right of way by purchase or condemnation before it occupied it. Whether the question of damages will be the only one raised in the eminent domain proceedings cannot be determined from this record.

Section 14, Article III, of our state Constitution provides: “Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.” In Flynn v. Beaverhead County, 49 Mont. 347, 141 Pac. 673, we considered this constitutional guaranty and said: “By force of this provision private property cannot be taken for a public use in invitum, except upon compensation first being made to the owner. In other words, the payment or tender of compensation, the amount of which has been ascertained in the manner provided by law, is made a condition precedent to the acquisition of any right by the public. * * * Possession taken from the owner without compliance with this condition is wrongful, and ejectment will lie in favor of the owner to recover.”

Counsel for appellant direct our attention to decided eases which they insist support their view; but an examination of them discloses that in every instance there were equitable considerations aside from the public character of the applicant’s business. In not one of the cases was the entry sought to be protected, initiated in naked trespass. There was in every case some sort of claim or color of right.

The case of Everett Water Co. v. Powers, 37 Wash. 143, 79 Pac. 617, seems to lend itself in aid of plaintiff’s position, bnt it is directly opposed to the rule adopted by this court in the Flynn Case above, and we prefer to follow our own decision.

[7] Counsel insist that a public utility corporation has the right to determine for itself where the line of its utility shall be operated, and cite Postal Telegraph-Cable Co. v. Oregon 8. L. R. Co., 23 Utah, 474, 90 Am. St. Rep. 705, 65 Pac. 735, in support of that view. Counsel need not have gone to Utah for their authority. In State ex rel. Bloomington L. & L. S. Co. v. District Court, 34 Mont. 535, 115 Am. St. Rep. 540, 88 Pac. 44, this court, announced the same rule as the Utah court, but in each instance the court was speaking with reference to a condemnation proceeding, and not with reference to the abstract right which would sanction a trespass upon private property. Subject to the provisions of section 7335, Revised Codes, it is no answer in eminent domain proceedings to say that a route different from the one sought to be condemned would suffice for plaintiff’s purposes, but it is a very forceful answer to a naked trespasser to say to him, “You have no right whatever upon my property.”

The order of the district court should be modified to meet the views herein expressed. The cause is remanded to the district court, with directions to issue an injunction pendente lite, which will preserve the status quo upon the ground now covered by the Pioneer Placer claim until the final decision upon the merits. With this modification made, the order will stand affirmed. Each party will pay his costs incurred upon this appeal.

Modified and affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.

Rehearing denied January 13, 1917.