30 Ind. App. 654 | Ind. Ct. App. | 1903
Appellant commenced this action by filing in the Lake Circuit Court its application and petition by which it is seeking to acquire an easement over the right of way of the appellee1 railway company from the Indiana state line1, near Hammond, to the town of Monticello, in
The facts stated in the petition and application are in substance as follows: That appellant is a corporation organized under the laws of the State of Indiana, giving it power to acquire land for the construction of its line of telegraph by condemnation or otherwise; that appellant has accepted the acts of congress passed in relation to telegraph companies, and that under the laws of the United States the railway of appellee is a post-road, over which the appellant, as a telegraph company, has a right to construct its lines; that the appellee railway company owns a right of way from the Indiana state line, near Hammond, to the town of Monticello, in White county, which right of way, with the exception of about two miles near Cedar lake, is 100 feet wide, and that the two miles above referred to is twenty-five feet wide; that appellant desires to construct its line upon the said right of Avay, by the erection of poles about 150 feet apart, Avhich poles are to be set at a distance of four feet from the easterly line of the right of way; that the easterly side of said right of Avay is not occupied by any telegraph company or any railroad track or anything else, and that the construction, maintenance, and operation of the telegraph line, as proposed, will not interfere in any Avay with the operation of said railway, or the travel thereon, nor in any way injure the franchises of the railway company, nor render it in any way more difficult to prosecute the object of its franchise, nor will it in any Avay interfere with the use of said right of way by the railway company, and that it is necessary in the construction and operation of appellant’s line to place the poles and wires as proposed; that there is a public necessity for such construction, and that no damage will result to the railway, company or the mortgagees; that the Western Union Telegraph Company has a line of poles on the westerly side of said right of way, and is there maintaining and operating a line of telegraph under
Upon 'the filing of such application an order was made by the court directing the clerk to issue a writ to the sheriff, requiring him to select a jury of six in number to assess damages. The writ was issued and delivered to the sheriff, who selected a jury and gave notice to all parties concerned. The jury met, went over the line as described in the petition, and assessed the damages; and thereupon the sheriff returned the writ, stating in his return all the acts done by himself and the jury, and including the verdict of the jury. Appellees filed their exceptions to the order of the court authorizing the selection of jurors, and to the appraisement and findings of the jury. Appellant filed a demurrer to each of the first, third, fourth, fifth, eighth, ninth, and thirteenth exceptions. This demurrer the tidal court overruled on the ground that the application of appellant was insufficient, and carried the demurrer back and sustained it to the application. This ruling, having been excepted to
The act of congress referred to in appellant’s petition is 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 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 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 the ordinary travel on such military or post-roads.” §5263 R. S. U. S. (2d ed.), 1878. “Before any telegraph company shall exercise any of the powers or privileges conferred by law such company shall file their written acceptance with the Postmaster-General of the restrictions and obligations required by law.” §5268 R. S.' U. S. (2d ed.), 1878. It is also provided by an act of congress, that: “The following are established as post-roads: All the waters of the United States, during the time the mail is carried thereon. All railroads or parts- of railroads which are now or hereafter may be in operation.” , §3964 R. S. IT. S. (2d ed.), 1878.
In the law of this State, under which the appellant was incorporated, it is provided that telegraph companies “shall have power to acquire, by purchase or otherwise, hold and convey such real and personal estate as may be necessary and proper for the purpose of erecting and keeping in repair its lines of telegraph and the buildings requisite for their operation. * * “ Such corporation shall have power to acquire such real estate and rights of way as may be necessary for the uses and purposes herein contemplated, under
We think the law of this State gives to telegraph companies the right and power to condemn land for its right of way upon the assessment and payment of damages, and that the reference in the law above quoted to the act for the assessment of damages adopts so much of that act as is necessary to enable the telegraph company to exercise such power.
The trial court in this case seems to have based its judgment upon fhe proposition that property already taken for a public use under the right of eminent domain, can not, in the absence of express legislative authority, be taken for a second public use; and in the able -written opinion delivered by the trial judge, which is made a part of appellees’ brief, it seems the court relied upon the case of Baltimore, etc., R. Co. v. North, 103 Ind. 486. The case cited sustains appellees’ contention in this regard, but the Supreme Court, in Baltimore, etc., R. Co. v. Board, etc., 156 Ind. 260, expressly overruled the North case, upon the proposition which appellees’ contention would necessarily lead them to. It seems to be the settled law, as announced by the decisions in this State, that if land is once appropriated, by virtue of the doctrine of eminent domain, for an important public use, it can not again .be appropriated for another public use, which is wholly inconsistent with the former, and which would supersede or destroy the former use, unless the right to subject the land to a second appropriation is authorized by an act of the legislature. Baltimore, etc., R. Co. v. Board, etc., supra; Gold v. Pittsburgh, etc., R. Co., 153 Ind. 232; City of Terre Haute v. Evansville, etc., R. Co., 149 Ind. 174, 37 L. R. A. 189; City of Ft. Wayne v. Lake Shore, etc., R. Co., 132 Ind. 558, 18 L. R. A. 367, 32 Am. St. 277.
The following eases unequivocally sustain the rule as here announced: Mills, Eminent Domain (2d ed.), §§45, 47; Baltimore, etc., R. Co. v. Pittsburgh, etc., R. Co., 17 W. Va. 812; Lewis, Eminent Domain (2d ed.), §269; Winona, etc., R. Co. v. City of Watertown, 4 S. D. 323, 56 N. W.
We do not need to consider the question, as to what rights telegraph companies have, under the acts of congress heretofore set out, in states where the right of eminent domain had not been granted to them; but in some of the states where the general right to condemn has been given to telegraph companies it has been held that the right to construct their lines upon the right of way of railway companies was given by the act of congress, and the means of enforcing the right was provided by the state laws. Postal Tel. Cable Co. v. Morgan's, etc., Steamship Co., 49 La. Ann. 58, 21 South. 183; Croswell, Electricity, §47; Postal Tel. Cable Co. v. Southern R. Co., 89 Fed. 190; United States v. Jones, 109 U. S. 513, 3 Sup. Ct. 346, 27 L. Ed. 1015.
In the case of Postal Tel. Cable Co. v. Southern R. Co., supra, the court said upon this subject: “This same right to construct its lines along the right of way of post-roads of the United States is given under the act of congress of I860 to all telegraph companies accepting the provisions of that act (Rev. St. U. S., §§5263, 5269) ; and the petitioner is one of the companies which has complied with all the requirements of this act, and has secured its privileges. But, notwithstanding this, before the privilege can be exercised upon lands, the property‘of private persons or corporations, the consent of such persons must be obtained, or such proceedings must be had as will insure them just compensation. No act of congress can give the right of taking private property for public purposes without first paying just compensation. Const. U. S. Amend. 5. And although §8 of article 1 gives congress power to establish post-roads, and to malee all laws which may be necessary to carry this power into
We think the law as stated in the case quoted from is correct, and founded in reason and supported by the Weight of authority. So that we must conclude that the law of our own State furnishes appellant with ample power to secure the rights asked for in the complaint, and that the right given under the federal' statute, when aided by a state law conferring the right of eminent domain, is ample for the purpose of securing the right herein petitioned for.
The judgment of the trial court is reversed, and cause remanded, with instructions to proceed in accordance with this opinion.