| U.S. Circuit Court for the District of Western North Carolina | Sep 9, 1898
The Postal Telegraph Cable Company filed its petition in the superior court of Guilford county, 3ST. C., seeking to condemn a right of way over the lands of the Southern Bailway Company. The petitioner sought a right of way for the erection of its poles and the stretching of its wires a few feet within the outside limit of the right of way of the railway company, so as in no way to obstruct or interfere with the use of its track by the railway company. The right of way sought extended through many counties of the state, the whole distance being largely over 200 miles. The only other party to the petition was the Southern Bailway Company. Upon the filing of the petition, proceedings were taken to remove the controversy into this court, and, a motion to remand hav
1. Tbe respondent contends that there is no law in tbe state of North Carolina providing for tbe condemnation of land or right of way for tbe use of telegraph companies. There is no doubt that any telegraph company incorporated by any state of tbe Union has the right to construct and maintain lines of telegraph along any railroad or other public highway in North Carolina, provided that they he so constructed as not to obstruct or hinder the usual travel thereon. Code N. C. 1883, § 2007. Such right may he obtained from the railway company owner of tbe land, franchise, or easement therein by contract. Code N. O. 1883, § 2008. The same Code (sections 2009, 2010) provided that, failing to make such a contract, tbe telegraph company could, exercising tbe right of eminent domain, obtain tbe right of way desired, and tbe right to erect its poles, and establish offices, upon making just compensation therefor. 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 1866 to all telegraph companies accepting tbe provisions of that act (Rev. St. U. S. §§ 5268, 5269); and tbe 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, tbe property of private persons or corporations, tbe 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 section 8 of article 1 gives congress power to establish post roads, and to make all laws which may he necessary to carry this power into effect, “like all other powers granted to congress by the constitution, tbe power to regulate commerce is subject to all the limitations imposed by this instrument, among them that of the fifth amendment.” Monongahela Nav. Co. v. U. S., 148 U. S. 325, 13 Sup. Ct. 622. The mode or method of exercising this right of eminent domain is fixed by the laws of the several states. Such mode
What, then, is the law of North Carolina on this subject, as provided for telegraph companies? Section 2010 provides that whenever no agreement, after application, can be obtained by the telegraph company for securing the right of way, it may, first giving security for costs, file its petition before the superior court of the county in which the lands are situate, or through which the easement, franchise, or privilege extends, setting forth and describing the lands, privilege, or easement over which the right of way is claimed, and the owners thereof; and, if the right of -way is sought only over an easement or right of way, the party owning such easement need be the only defendant. Section 2011 provides for the service of a copy of this petition, with the proper notice to be served on the defendant. These two sections bring the parties into court. The next section provides the steps to be taken after the parties are in court, and how the important constitutional provision shall be observed, — the ascertainment of the just compensation, without which the right cannot be exercised. Section 2012 declares: “The proceedings for the condemnation of lands or any easement or interest therein, for the use of telegraph companies; the appraisal of the lands or the interest therein; the duty of the commissioners of appraisal; the right of either party to file exceptions; the report of commissioners; the mode and manner of appeal; the power and authority of the court or judge; the final judgment and the manner of its entry and enforcement; and the rights of the company pending the appeal,” — these distinct essential steps in the proceedings, all leading to the final result and concerned with that only, — “shall be as prescribed, in this chapter for condemning lands to the use of railroads.” This chapter in the Code here spoken of is chapter 49. .The provisions of this chapter with respect to the- condemnation of lands for the use of railroads, are found in section 1945 et seq. Inasmuch as section 2010 sets forth
It was also insisted that section 1952 provides for maps of the route to be made and filed in the office of the clerk of the court of the county through which the road may run. ' This provision applies to steps antecedent to the filing of the petition for condemnation, indicating the proposed route, and allowing objections to be made, so that it may be altered, if necessary. It is not that part of the railroad law prescribed for telegraph companies, for it makes its own provision as to the filing of the petition and the contents of the petition, and only adopts that part of the railroad law which prescribes the steps to be taken after the petition is in court. For the same reason section 19 It cannot be made to apply to telegraph companies. This section prescribes the formalities to be observed in filing a petition by a railroad company, and wbat the contents of such petition must be. Among others, it requires the company to state that the company has surveyed the line or route of its proposed road, and made a map thereof, and has filed it in the clerk’s office, etc. But section 2010, which provides for the filing of a petition bv a telegraph company,
Such are the provisions of chapter 49 of the Code of North Carolina, relating to the condemnation of a right of way for a telegraph company, when it becomes necessary to exercise the right of eminent domain. The Code (section 2012) says that these proceedings on the part of the telegraph companies, and all subsequent steps therein, “shall be as prescribed in this chapter for condemning lands to the use of railroad companies.” Chapter 49. The words are without qualification, “as prescribed in this chapter.” Therefore they are to be found in the chapter alone. This was the manifest purpose of the act. Had the legislature intended that telegraph companies should always be hound by provisions of the law in this behalf as to railroad companies then or thereafter existing, it would have said so, either by adding the words, “or any amendment thereof hereafter' adopted,” or language equivalent thereto. The general rule unquestionably is that, when a statute refers to and adopts an existing law, its purport is confined to the law as it then exists, and does not embrace or include any subsequent modification of it. Kendall v. U. S., 12 Pet. 524" court="SCOTUS" date_filed="1838-03-12" href="https://app.midpage.ai/document/kendall-v-united-states-ex-rel-stokes-86062?utm_source=webapp" opinion_id="86062">12 Pet. 524; Shrew v. Jones, 2 McLean, 78" court="None" date_filed="1840-05-15" href="https://app.midpage.ai/document/shrew-v-jones-8637047?utm_source=webapp" opinion_id="8637047">2 McLean, 78, Fed. Cas. No. 12,818; U. S. v. Knight, 3 Sumn. 368, Fed. Cas. No. 15,539. Standing upon this principle of law, the respondent says that since the passage of the Code the legislature of North Carolina has amended the provisions in that instrument relating to the condemnation of land for railroad purposes in several important and vital particulars, and to that extent repealing provisions in the Code; that as to these provisions so repealed, they no longer exist, — are as if they never existed. Reg. v. Inhabitants of Denton, 14 Eng. Law & Eq. 127; Curran v. Owens, 15 W. Va. 224; Musgrove v. Railroad Co., 50 Miss. 681; Insurance Co. v. Ritchie, 5 Wall. 544; Railroad Co. v. Grant, 98 U.S. 398" court="SCOTUS" date_filed="1879-04-14" href="https://app.midpage.ai/document/railroad-co-v-grant-89879?utm_source=webapp" opinion_id="89879">98 U. S. 398. Were the rule otherwise, the courts would insert in the statutes essential words which the legislature chose to omit. U. S. v. Goldenburg, 168 U. S. 103, 18 Sup. Ct. 3. The defendant contends, therefore, that these amendments have emasculated the provisions of the Code in this behalf, and they no longer have the meaning they had. That thus there exists no practicable method for securing the right of way for telegraph companies, and, in effect, no law is of force applicable thereto. This brings up the vital question in this case, and necessitates an examination into the effect and purpose of these amendments. Since the passage of the Code the legislature of North Carolina have amended this chapter in the following particulars: Sections 1944, 1946, 1952. Section 1944 has been amended by striking out all requiring the petition of the railroad company to state that the line or route of the proposed road has been surveyed, and a map made, the road located, the location certified and filed with the clerk. Act March, 1893. As has been seen, section 2010, addressed exclusively 'to telegraph companies, states minutely the facts to be set forth in the petition by telegraph companies, and makes no requirement of a map. No reference is made to any provision of the Code as to railroad companies until section 2012 is reached, and that section relates
2. Has the telegraph company in this case followed the requirements of the Code in these essential particulars? The petition follows closely, almost literally, the language of section 2010, prescribing what facts should be stated.
3. Is the petition vague and indefinite in any respect? It asks a right of way over the right of way of the railway company — a well-defined and well-known subject — under whatsoever tenure it may be held, above all thoroughly known to the railway company. It distinctly specifies what part of the right of way is desired, — so many ■feet from the outer edge of the right of way or anywhere in which it would not obstruct or impede the use of its track; all subject to the provisions of section 2007 that the line be so constructed, and, after construction, be so maintained, as not to obstruct or hinder the usual travel on the railway. This is a condition inherent in the use. The cause has been heard, as it were, on general demurrer; at the least, on demurrer going to the merits of the case. Ho facts are in dispute, and the question of law controls. Ho answer over is necessary. The defendant, however, asks that pending these proceedings it be allowed to enter upon the erection of its poles and the construction of its lines. The mode of exercising the right of eminent domain — a right claimed here under the laws of the state — is prescribed and fixed by the laws of the state. . This court is bound by and must act within its provisions. These laws made no provision for entry on the lands sought to be condemned until the damages are assessed and paid into court. It must be observed that we are dealing with a case in which the petitioner seeks the protection of the law, and asks that he get rights in the mode and under the provisions of that law. He has not entered. He is not in possession. He seeks a right to enter and to take possession. Under these proceedings he cannot get these rights, except in the language of 'the act (section 1946). Plaintiff’s second petition is dismissed. Commissioners will be appointed under section 1945, who will proceed as in the Code directed, making such compensation as shall be just.