101 Tenn. 62 | Tenn. | 1898
These two cases involve in the main the same questions, and are heard together by
The cases are before us on appeal by the railroad company, but the real party in interest is the Western Union Telegraph Co., a competing line, with which the railroad has a contract for an exclusive line over its right of way, and which has the right, under its contract, to use the name of the railroad company in any suit to resist the attempt of any competing line to construct any other line upon its right of way. This contract appears to be based upon a valuable consideration of services to be rendered.
The first question raised, is that the telegraph
There is no entry on the house journal showing that the Speaker of' the House ever signed this bill. There is no other irregularity or. defect alleged against its passage. The journals of each house show that it has passed on three separate readings on three different days in each, and the journal of the senate shows that it was signed by the Speaker of the Senate, and the fact noted on the senate journal, and tlien it was transmitted to the house for the signature of the Speaker of the House, but there is no entry upon the journal of the house that it was signed by the Speaker of the House. It was ' approved by the Governor upon the next day thereafter. It is said this defect vitiates the
It is said this Act of 1885, Ch. 135, has reference to the remedy or mode of procedure to condemn property, and does not confer any right, and that the right was intended to be conferred by Section 66. While the Act does prescribe the manner of proceeding, it also clearly gives the right to take the privileges, rights, or easements of private corporations in the same manner and to the same extent as in case of the property.of individuals. Shannon, §§ 1860-1871.
This being true, the next question that arises is as .to the measure of damages, and the mode of ascertaining the same. In the Madison County case it was held, as before stated, that the railroad company was entitled to only nominal damages. In the Gibson County case the Court charged
The contentions of the parties are thus shown to be that complainant insists that the damages are purely nominal, while the defendant insists, according to the request, that they are the fair cash market value of the right acquired, or easement secured, as if it were a matter of contract between the parties. In its petition, the telegraph company disclaims any right or purpose to obstruct, impede, or interfere with the railroad in its use of its right of way for railroad purposes, and proposes, whenever the railroad company desires to use any part of its right of way, occupied by the telegraph company, for additional side tracks, or other railroad use, to remove its poles and replace them at such other places on its right of way as may be mutually agreed on by the two companies. It proposes to, plant its poles or posts thirty feet from the outside edge of the rail of the track of the railroad, and, upon the side of the track opposite that of the Western Union Telegraph Company’s lines.
It is not insisted in this case that the use of the right of way, and construction of the telegraph line, will be any detriment or obstruction to the railroad, but, on the contrary, it is shown that it would be a benefit and a convenience. Á telegraph line along a railroad line is not only a convenience, but a necessity, and is very properly treated as a railroad appurtenance. A railroad company may therefore construct a telegraph line along its right of way, or permit another to do so, but it acquires, and can confer, no exclusive right to do so. Western Union Tel. Co. v. Baltimore R. R., 19 Fed. Rep., 660; Western Union Tel. Co. v. American Union Tel. Co., 38 Am. Rep., 781; Western Union Tel. Co. v. B. & O. S. W. R. R., 11 Fed. Rep., 1; Pensacola Tel. Co. v. Western Union Tel. Co., 3 Otto, 124; 3 Am. & Eng. Enc. L. (1st Ed.), pp. 885, 886.
Under this view of the estate and interest which railroad companies have in their right of way, it is difficult to see how the damages sustained by thé road can be anything but nominal. We are not now considering the rights of the holders of contiguous lands, who own the fee in the lands over which the railroad has its rights of way. Such rights are in nowise involved in this case, and we make no intimation upon this feature of the matter. Neither is the question raised in these cases about the measure of damages when the railroad spans a large stream
It is said with much earnestness, and with some degree of plausibility; that it would be > unjust to allow a telegraph company to plant its poles’ along the right of way, when a railroad company had expended thousands of dollars to clear and keep it free of obstructions, and yet pay nothing for the privilege. But this view is more specious than sound, for the railroad must incur this expense for its own purposes, whether the telegraph line is there or not,
The learned trial Judge in the Madison County case held: “The measure of damages to the defendant is the amount of decrease in the value of the use of the right of way for railroad purposes when it is jointly used for telegraph purposes.” This rule was, no doubt, adopted from the rule laid down by the Supreme Court of the United States in the case of the C. B. & Q. R. R. Co. v. City of Chicago, 166 U. S., 248. That was a case where the city of Chicago desired to open a street across a portion of the railroad right of way in the city, and instituted condemnation proceedings in the Courts of Illinois. Jury awarded nominal damages of one hundred dollars. The Supreme Court of Illinois affirmed this verdict and judgment. The case was removed to the Supreme Court of the United States. It was attempted to be shown by the railroad company, that, in consequence of opening the street across its right of way, it would be put to an extra expense of erecting gates, maintaining flagmen, and planking the crossing; but this evidence, as well as evidence of the market or salable value of the land was excluded, and the Supreme Court of the United States held that it was not error to exclude such evidence of the salable value of the land, nor the estimated increase in maintaining the roadbed, flagmen, etc.
It is said that the statute (Shannon, § 1857) prescribed that the jury shall give the value of the land without deduction. But this has reference to the land of owners which may be used for all purposes. It does not refer to telegraph companies, but by §1870 (Shannon) it is provided as to these that juries shall not be required to lay off the property, privileges, rights, or easements sought to be condemned, by metes and bounds, and it shall be discretionary with the jury of inquest whether they view the premises or not — a provision which is mandatory in cases of private property taken and condemned. The right of the railroad company being simply to occupy and use the right of way for railroad purposes, it follows that it can suffer only nominal damages when that use and occupation is not interfered with or incumbered in any way.
A question is raised in the Madison County case as to the right of the defendant to have a jury trial on appeal to the Circuit Court on the quantum of damages, but in the view we have taken, that the defendant was only entitled to nominal damages, that question is unimportant.