1 S.W.2d 537 | Ky. Ct. App. | 1927
Overruling petition for, writ of prohibition.
This is an original proceeding in this court wherein the petitioners are seeking a writ of prohibition against the respondent, who is the county judge of Warren county, to prevent him trying certain condemnation proceedings now pending in his court. The petitioners, who are landowners in Warren county, are the defendants in the condemnation proceedings referred to and which were brought by the Southern Bell Telephone Telegraph Company for the purpose of condemning a right of way through such lands for a telephone line. It is conceded that the county court has jurisdiction to try this character of cases, but it is insisted that the Southern Bell Telephone Telegraph Company, a foreign corporation which has not domesticated itself as foreign railroads are required to do (see Kentucky Statutes, section 765), has no authority to institute such condemnation proceedings. The defendants in those proceedings, petitioners here, raised the issue in the county court of the right of the telephone company to condemn, and the respondent, as the judge of that court, ruled against them. They then brought this proceeding to prohibit the respondent from further proceeding in the matter. As a ground for their action the petitioners aver that, although this matter is within the jurisdiction of the county court, the latter is proceeding erroneously and the petitioners have no adequate remedy by appeal. Under the Civil Code, if an inferior court is proceeding out of its jurisdiction it may be restrained by a writ of prohibition sued out in the circuit court in which state of case this court will not take original jurisdiction to prohibit such inferior court but will require the petitioner to institute his proceeding in the circuit court. Henry v. Harris, Judge,
There are two statutes in this state which are closely connected. One is called the telephone statute, and the other is the telegraph statute, the latter being the older one. Rather curiously, telegraph companies have never had the power of eminent domain over private property given to them. For some time prior to 1916 they were vested with the power of eminent domain not only over the public lands of this state and on and across and along all highways and turnpikes and across and under any navigable waters as they now have, but also on and along and upon the right of way and structures of any railroad in this state. This power of eminent domain over railroad rights of way was divested from telephone companies by chapter 15 of the Acts of 1916, now section 840a of the Statutes. On the other hand, telephone companies, not only those chartered in this state, but also those chartered in any other state (see Kentucky Statutes, sec. 4679d1), have always been vested with authority to condemn a, right of way over private property. By Kentucky Statutes, sec. 4679d2, the procedure in such condemnation proceedings is required to be "substantially the same as is provided in chapter 125a (section 4679a, Kentucky Statutes) in respect to proceedings to acquire the right of way for telegraph companies." It will be noted that the section of Kentucky Statutes is referred to as section 4679a, whereas the section number now *490
given to chapter 125a is 4679c. The changing of the letter to this section's number is referred to in Northern Kentucky Mutual Telephone Co. v. Bracken County,
Whole court sitting.