American Telephone & Telegraph Co. v. Pearce

Miller, J., delivered the opinion of the Court. These ten cases were argued together, and, as they present substantially the same questions, they will be disposed of in one opinion. They are all bills filed by separate land-owners in Baltimore County, seeking to enjoin the “ American Telephone and Telegraph Company of Baltimore City,” a corporation incorporated under the general corporation law of this State, from erecting telegraph poles, and ,constructing a telegraph or telephone line of wires on and over the lands of the several complainant's. Eight of the appeals are from orders granting preliminary injunctions upon the several bills.

It is well settled that in deciding an appeal from such an order this Court can look only to the case made by the bill, though the defendant is required to file an answer before he can appeal, and the answer must appear •in the record. Blackburn, et al. vs. Craufurd, et al., 22 Md. 447 . The question then is, does each of these eight several bills make out a case for the granting of such an injunction? The bills all aver and charge in substance that the defendant company has recently deposited large and heavy poles upon the lands of the complainants along the line of the Maryland Central Railroad, and is engaged in setting up said poles, or is about to do so, without their permission or consent; that the erection of these poles and the stringing of wires thereon is injurious to their property, and is an appropriation of private property for public use without compensation or tender thereof to the complainants, and that they are entitled to have 'the defendants restrained and enjoined from erecting said poles and stringing wires thereon on and over their lands until it has acquired the right to do so by condemnation of the lands for such use, or otherwise. ⁵³⁹ We have no doubt as to the sufficiency of these averments, or of tlie jurisdiction of a Court of equity to grant an injunction in such cases.

A corporation created for the purpose of transmitting messages by telegraph or telephone, is, with respect to its right to construct its lines over private property, just as much subject to the provisions of Art. 3, sec. 40, of the Constitution, as is a railroad or any corporation clothed with the power of taking private property for public use. Lewis on Eminent Domain, sec. 172; Mills on Eminent Domain, sec. 21. This clause of the Constitution is too plain to admit of any doubt, and the averment that the defendant is proceeding, or threatens to proceed to construct its lines of poles and wires on and over the complainants’ lands without their leave or license, and without paying or tendering to them condensation for the use of their lands for this purpose, is of itself enough. The Court could not properly refuse an injunction in the face of such an averment.

The nature of the damage complained of, whether irreparable or not, has nothing to do with the question when thus presented. Western Maryland Railroad Company, et al. vs. Owings, et al., 15 Md., 199 . We shall therefore affirm the orders appealed from in these eight cases without considering the question whether the appeals, or any of them, should be dismissed because of the fact that the answers of the defendant are not under its corporate seal. In the other two cases (those of Smith and McIntosh) the appeals are from pro forma orders refusing to dissolve the injunctions upon bills, answers and proof.

In these cases the defendant corporation, in its answers, avers that it is proceeding to construct its line of poles and wires along and on the right of way of the Maryland Central Railway Company, under a contract with that company made on the 29th of April, 1889, for the use and benefit of the railway company in operating and ⁵⁴⁰ running its cars; that the railway company has the right to place telegraph poles and wires, and telephone wires and poles, over and upon its right of way, for the use and operation of its railroad, and as many as may be necessary for operating its road, and for the safety of the public who travel over the same, for the purpose of facilitating the business of the road, and increasing its passenger travel and freight tonnage; and that the railway company could do this themselves or employ some other company to do it for them, and the complainants have therefore no right to interfere. These answers disclose what is obviously the real controversy in all these cases. On the one side the landowners from whom the railroad company obtained the right of toay for the construction of its railroad, insist that the construction of this telegraph and telephone line, will impose an additional servitude or burden on their lands for which they are entitled to compensation, and that the line cannot be constructed until the corporation or corporations undertaking its construction have first complied with the requirement of the Constitution in regard to taking private property for public use. On the other hand the Telephone and Telegraph Company contend that they are constructing this line upon the right of way of the railroad companjr, under a contract with that company for its use, and to facilitate the operation of its road, aiid to increase its business, and in this contention they are aided by the railroad company.

The right to construct this line has also been placed in argument upon other grounds, which will be noticed hereafter. Before considering the facts, we must ascertain the law applicable to- such cases, and this is not altogether free from difficulty. Not many instances have occurred in which land-owners have asserted such claims, and the cases in which the precise question before us has been ⁵⁴¹ raised are comparatively few. In the most recent Textbook on Eminent Domain it is said “a line of telegraph on a railroad right of way is an additional burden, unless constructed for the use of the railroad company in the operation of its road and dispatch of its business.” Lewis on Eminent Domain, sec. 141.

In Milts on Eminent Domain, sec. 59, the author approvingly quotes part of the opinion of the Court in Western Union Telegraph Co. vs. Rich, 19 Kansas, 517. That case, also referred to by LjCwís, has been strongly pressed upon our attention, and therefore requires a careful examination. It was a suit by a land-owner against the Western Union Telegraph Company to recover damages for cutting down trees on his land. The trees were on or close to the right of way of the A. T. & S. F. railroad, and were cut down to make room for the telegraph poles, and to prevent interference with the telegraph wires.

The defendant sought to prove that the telegraph line was built jointly by it and the railroad company, under an arrangement for its joint use by the two companies, and introduced a witness to prove that the line of telegraph was built jointly by the two companies for the use of the railroad company in the moving of its trains and the transaction of its business; that it was part of and necessary to its business, and was built on and over the right of way of the railroad company. The lower Court rejected this testimony, and this ruling was held to be erroneous. This ivas the sole question decided, and in deciding it the Court said: “A telegraph line, if not indispensable to a railroad, tends so much to facilitate its business, and to the speedy and safe running of its trains, that the railroad company has a right to build it, to? use its right of Avay therefor, and to remove all obstructions thereon, to its fullest and most uninterrupted and beneficial use. Although it may have but an easement in the land, and that easement limited to ⁵⁴² its use for railroad purposes, yet a telegraph is so convenient if not indispensable, that it may cut down every tree and bush on the right of way, if necessary for the most constant and efficient use of a telegraph line built by it over and upon such right of way, just as it-may dig away a hill, or fill up a ravine for the sake of a water-tank or a station-house.

By so doing it gives the adjacent land-owner no claim for damages. Such use is contemplated in the original condemnation, and the damages resulting therefrom are part of the damages included in the assessment therefor. In short, the railroad company may use its right of way not merely for its track, but for any other building or erection which reasonably tends to facilitate its business of transporting-freight and passengers, and by such use in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damage to the original land-owner. So that if the railroad company had' built this line by itself and independent of the defendant, and in doing so had only cut down trees upon its right of way, it is clear that the plaintiff would have no cause of action therefor.

Does the fact that it took a partner in the construction and use of the telegraph expose it, or such partner, to any liability to the landowner for the full value of trees cut down upon its right of way? We think not. If the railroad company could build by itself without liability, it did not assume liability by building- with another. Whatever it cduld do, and would have done, for its own tese and benefit, and ivas so done, was, so far as the land-owner is concerned, damnum absque injuria, no matter rvho bore the expense; or, perhaps more correctly, it was' damages already paid for.

We do not question that every additional burden cast upon the land outside the purpose and scope of the original easement, no matter in whose behalf, gives the landowner new claim for compensation. But such compensa ⁵⁴³ tion is limited to the extent of the additional burden. Of course, if the trees were not upon the right of way, it is immaterial whether the defendant built the line alone or jointly with the railroad company, for in the latter case either would be responsible for the entire damages. We cannot of course pass upon this question of fact, for we cannot tell what the testimony, if admitted, would have disclosed.

It is enough that the testimony offered ought to have been admitted, and then the jury instructed that, if the facts were as defendant sought to prove them to be, the defendant was liable for only the damages caused by the additional burden, if any, its use of the telegraph cast upon the land. ’ ’ We have thus quoted this opinion at length, because it is a very clear statement of the law, which we are willing to accept. It recognizes the right of the landowner to compensation for every additional burden cast upon the land outside the scope of the original easement, and that whether a given structure creates an additional servitude is a question of fact, depending on the circumstances of each case, to be determined by the tribunal having jurisdiction to try the same, and before ■which it is tried. We cannot adopt the view taken by counsel for the appellant that this question must in all cases be determined by the judgment and opinions of the railroad officials or employes. In a case where the question was 'whether a certain building was a “ necessary building,” within the terms of a railroad charter, that question was determined by this Court itself, upon proof as to the character of the building, its location, and the purposes for which it was constructed and used.

Hamilton vs. Annapolis & Elk Ridge R. R. Co., 1 Md., 560 . We entertain no doubt whatever as to the right of a railroad company to construct on and over its right of way a telegraph or telephone line, for its use in the operation of its road and dispatch of its business; and it may do ⁵⁴⁴ this by itself, or may employ another company to do it, or may do it conjointly with another company. If, then, this line is in process of construction, or is about to be constructed, ovér the right of way of this railway company, in good faith, for the use and benefit of the latter in the operation of its road, and to facilitate its business or is reasonably necessary for that purpose, the land-owners have no ground of complaint, because such use of their land is within the scope of the original easement, for which they have already received compensation. But, on the other hand, if this is not the motive for its construction, and the main object i*n constructing it is to establish an extensive line of telegraph and telephone communication through this and other States, for general commercial purposes, for the use and benefit of the defendant, and such a line is not reasonably necessary for the purposes of the railroad, then it will be a new easement, and put a new and additional burden upon the land for which the owners are entitled to compensation.

This question will be decided when we come to consider the facts; but we must first notice the other grounds upon which the right to construct this line is sought to be placed. By an Act of Congress, approved July 24th, 1866, (II. S. Rev. Stat., sec. 5263,) it is provided, among other things, that “any telegraph company now organized, or which may hereafter be organized, under the laws of any State in the Union, shall have the right to construct, maintain and operate lines of telegraph over and along any of the military or post-roads of the United States which have been, or may hereafter be, declared such by Act of Congress;” provided such lines “shall not be so constructed as to interfere with the ordinary travel” on such roads. And provided also “that before any telegraph company shall exercise any of the powers or privileges conferred by this Act, such company shall file ⁵⁴⁵ their written acceptance, with the Postmaster-Gfeneral, of the restrictions and obligations required by this Act.” Congress afterwards, in 1872, declared all the railroads in the country which are now or may hereafter be in operation to be “post-roads.” There is nothing in these records to show that the defendant has filed its acceptance of the Act of 1866, but as this can readily be done, it is proper we should give our views of the construction and effect of these statutes.

We cannot suppose it was the intention of Congress, by these enactments, (even if it had the power to do so,) to put the right of way of every railroad in the country at the mercy of the telegraph companies, and allow the latter to use them, for the construction of their lines, without making compensation to any one therefor. Such a construction was wholly repudiated by Judge Drummond in the case of Atl. & Pacif. Telegraph Co. vs. Chic., Rock Isl. & Pacif. Railroad Co., 6 Bissell, 158 , and by Judge Harlan in Western Union Telegraph Co. vs. Am.

Union Telegraph Co., 9 Bissell, 72 . In the latter case, it is expressly said that under this Act the