238 F. 26 | 5th Cir. | 1917
The bill in this case was filed by the appellant, the Western Union Telegraph Company, against the appellee, the Louisville & Nashville Railroad Company, on the 15th day of April, 1915. Its averments showed that at the time the bill was filed, and for a number of years prior to that date) the plaintiff had telegraph lines on the rights of way of specified railroads in Georgia 'which were owned or controlled by the defendant, and used such rights of way and
The bill asserted that on and prior to August 5, 1912, the plaintiff was, and at the present time is, seised and possessed of irrevocable, perpetual, assignable easements or rights for the construction, maintenance, and operation of said telegraph lines upon, along, or over the mentioned railroad rights of way of the defendant, and to continue to use the defendant’s rights of way in the operation of its telegraph business, and prayed that the defendant be restrained and enjoined from interfering with, obstructing, or impeding the enjoyment by the plaintiff of the rights and easements so claimed by it, and prayed further that, if the court should determine that the plaintiff’s rights and easements in the defendant’s rights of way were not irrevocable and perpetual, and that the defendant is entitled to compensation therefor, a decree be rendered in this cause determining the amount of compensation the defendant is entitled to receive from the plaintiff therefor, or, in the event that it ,should be adjudged that such compensation should not, or cannot, be fixed and decreed in this cause, that the plaintiff be permitted to institute appropriate proceedings for the purpose of fixing and determining such compensation, and that, pending such proceedings, the defendant be restrained and enjoined from interfering with, obstructing, or impeding the enjoyment by the plaintiff of the use for its telegraph business of the defendant’s rights of way and premises. The bill also contained a prayer for such other or further relief as the nature of the case may require or that equity may afford. On motion of the defendant the bill was dismissed, and a restraining order which had been made was vacated. The appeal is from the decree to this effect.
The railroads of the defendant, which the^plaintiff claims are subject to the easements and rights in .its favor asserted by the bill are the lines in Georgia which the defendant, in the year 1902, purchased from
“That whereas, the telegraph company has by conveyance of even date herewith purchased the telegraph lines along the railway company’s railroads from Knoxville, Tenn., to Marietta, Ga., and from Blue Ridge, Ga., to Murphy, N. C., said purchase having been made on condition that a working agreement be entered into between the parties hereto, covering said railroads and said telegraph lines, and any extensions or branches of said railroads, and any railroads hereafter owned, leased, or controlled by the railway company party hereto.” '
While the two instruments bear different dates of execution, yet as the recifal quoted shows that the parties to them treated them as contemporaneously executed, and that the one was made on the condition that the other would be made, it may be assumed that they should be
“The provisions of this agreement shall extend to all railroads now owned, leased, controlled, or operated, and to all railroads hereafter owned, leased, controlled, or operated, by the railway company, or by any company or corporation in which th'e railway company may own a majority of the stock, or whose action it may be able to control, by the ownership of stock or other-' wise; and the provisions of this agreement shall be and continue in force for and during the term of twenty-five (25) years from the twelfth (12th) day of February, 1S98, and shall continue after the close of said term until the expiration of one (1) year after written notice shall have been given after the close of said term by either party to the other of an intention to terminate the same, and in case of any disagreement concerning the true intent and meaning of any of said- provisions, the subject of such difference shall be referred to three arbitrators, one to be chosen by each party hereto, and the third by the two others chosen, and the decision of such arbitrators, or of a majority thereof, shall be final and conclusive.”
It contained sundry provisions to govern the rights and obligations of the respective parties in the transaction of the business provided for, among them the following:
“The railway company, so far as it legally may, hereby grants and agrees to assure to the telegraph company the exclusive right of way on, along, and under the line, lands, and bridges of the railway company, and any extensions and branches thereof, for the construction, maintenance, operation, and use of lines of poles and wires and underground or other lines for commercial or public telegraph and telephone uses or business,, with the right to put up or construct, or cause to be put up or constructed, from time to time, such additional wires and such additional lines of poles and wires and underground or other lines as the telegraph company may deem expedient.”
As to the lines of railroad described in the contract, the railway com
“Witnesseth, whereas, the operation of the telegraph company’s lines along the various railroads owned, controlled, or operated by the railroad company has been conducted under the provisions of an agreement between the parties hereto, dated May 14, 1880, which agreement provides that it may be terminated on one year’s written notice after July 1,1885.”
And it contained the following provision:
“The provisions of this agreement shall supersede said agreement hereinbe-fore mentioned and all other agreements between the parties hereto, or their respective predecessors in ownership or control of their respective properties; and the provisions of this agreement shall be and continue in force for and during the term of twenty-five (25) years from and after the first (1st) day of July,. eighteen hundred and eighty-four (1884), and thereafter until the expiration of one year after written notice shall have been given by one of the parties hereto to th'e other of a desire or intention to terminate the same, and in case of any disagreement concerning the true intent and meaning of any of .said provisions the subject of such difference shall be referred to three arbitrators, one to be chosen by each party hereto, and the third by the two others chosen, and the decision of such arbitrators, or a majority thereof, shall be final and conclusive.’
It also contained, with other provisions governing the relations of the contracting parties in the conduct of the business provided for, not claimed or considered to have any bearing on any question involved in this case, the following:
*33 “The railroad company, so far as it legally may, hereby grants and agrees to assure the telegraph company the exclusive right of way on and along the line, lands, and bridges of all roads now owned, leased, controlled, or operated by said railroad company, or which it' may hereafter own, lease, control, or operate, for the construction and use of such lines of poles and wires or underground wires for commercial or public uses or business as the telegraph company may require, together with the exclusive right to maintain offices in its depots for commercial telegraph business. * * * ” •
In the District Court, as is shown by the opinion rendered by Judge Newman (Western Union Telegraph Co. v. Louisville & Nashville R. Co., 229 Fed. 234), the view prevailed that the question of the right of the plaintiff to remain upon or use any rights of way or other property of the defendant was controlled solely by the contract just quoted from, and that the rights conferred by that contract had expired by the lapse of the time during which they were to be enjoyed. We infer that the opinion was entertained that the above-quoted stipulation, that “the provisions of this agreement shall supersede said agreement heretofore mentioned and all other agreements between the parties hereto, or their respective predecessors in ownership or control of their respective properties,” by itself, or in connection with the provision of the contract specifying the rights of use and occupation to be enjoyed by the plaintiff, had the effect of annulling or destroying the right and license conveyed to the plaintiff by the Atlanta, Knoxville & Northern Railway Company’s deed to it. For reasons sufficiently indicated by what has been said above in discussing a quite similar provision of the plaintiff’s contract with the defendant’s grantor, we are not of opinion that the provision for an exclusive right of way contained in its contract with the defendant operated to impair any interest conveyed by that grantor’s deed to the plaintiff. The stipulation in the contract that “the provisions of this agreement shall supersede said agreement here-inbefore mentioned, and all other agreements between the parties hereto or their respective predecessors in ownership or control of their respective properties,” plainly had the effect of superseding the above-mentioned agreement between the plaintiff and the Atlanta, Knoxville & Northern Railway Company, the defendant’s predecessor in the ownership of part of the railroads in question; but that stipulation would bring about a result which the language used in it does not indicate was contemplated by the contracting parties, if it is allowed to operate to deprive the telegraph company, not only of such rights as were conferred by a previous contract, but of a property interest bought, paid for, and duly conveyed to it before either the superseded or the superseding agreement was made.
Nothing was purported to be superseded except certain “agreements” which were referred to. The only agreements, the terms of which are disclosed, are the two already mentioned, copies of which are made exhibits to the bill, one between the plaintiff and the defendant, and the other betwéen the plaintiff and a grantor of the defendant. The only other agreement mentioned is one between the plaintiff and the defendant, dated May 14, 1880, the terms of which are not disclosed further than by a recital above quoted from the agreement which superseded that one. It may be inferred from that recital that that agreement was
“It is mutually understood and agreed that the telegraph lines and wires covered by this contract shall form part of the general system of the telegraph company, and as such in the department of commercial or public telegraph business shall be controlled and regulated by it, the telegraph company fixing and determining all tariffs for the transmission of messages and all connections with' other lines.”
The nature of the contract creates a presumption against the correctness of a construction of any provision of it under which such provision would remain effective beyond the period during which the contract was to be’in existence. The contract is one between a railroad company and a telegraph company for the conduct of a telegraph business on the railroad company’s property for a limited period of time. Presumably any right conferred by such a contract on the telegraph company to use or occupy railroad property was given only in order to promote the purposes of the contract, and was intended to last only so long as the relations between tire parties established by the contract
No facts stated in the bill, other than what is disclosed by the above-mentioned deed to the plaintiff, support a conclusion that any right to occupy or use the defendant’s property which had been conferred on the plaintiff by contract or conveyance, or by the conduct of the parties, or their respective predecessors, was in existence at the time the bill was filed.
The execution by the defendant of its expressed purpose to exclude the plaintiff from the occupation or use of any of its railroad rights of way or other premises, and to appropriate properties of the plaintiff not removed by the latter, would involve an invasion of rights. conferred on the plaintiff by the above-mentioned deed to it, and cause an interruption of the plaintiff’s business and a probable consequent loss of profits, the injury and damage from which it is not to be supposed could fully and adequately be compensated for at law. The part of the bill which disclosed the existence and threatened invasion of the rights just referred to was enough to make the motion to dismiss it not properly grantable.
It follows that the decree appealed from should be reversed; and it is so ordered — the plaintiff to have leave to amend its bill, as it may be advised, to make a further and better statement of the nature of part of the claim relied on.
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