Latrobe v. Western Telegraph Co.

Bryan, J., delivered the opinion of the Court. Certain stockholders of the Western Telegraph Company of Baltimore City filed a hill in equity against the corporation and certain of its directors, and against The Western Union Telegraph Company. The principal averments of the hill of complaint briefly stated, are as follows: That the Western Telegraph Company of Baltimore City ²³⁵ was the owner of a line of telegraph posts and wires, and was entitled to use them for the transmission of messages; that the Baltimore and Ohio Eailroad Company unlawfully took possession of said line; that a suit in equity was brought by the first named corporation against the Baltimore and Ohio Eailroad Company to establish its title to the telegraph line; that the Western Union Telegraph Company purchased the rights of the Baltimore and Ohio Eailroad, and received from it the possession of the telegraph line, posts and wires, and being the holders of a majority of the shares of stock in the Western Telegraph Company of Baltimore City, it intervened in the suit in equity, and prevented the prosecution of it to a decision in the Court of last resort. We will commence the consideration of the questions in this case by examining the title to the telegraph line, posts and wires set up as the basis of the complainants' prayer for relief.

The Legislature, on the fifth day of February, 1841, incorporated the Western Telegraph Company, and, in the seventeenth section of the Act of incorporation, provided that it should endure for thirty years from its passage. In the year 1853, this corporation made an agreement with the Baltimore and Ohio Eailroad Company, and another agreement in 1855; both of them relating to the telegraph line and its accessories which are in controversy in this suit. By the first section of the agreement of 1853 the Telegraph Company acquired a license, so long as it should exist as a telegraph company, to erect and maintain a line of telegraph upon and within the limits of the railroad. The second section hound the Eailroad Company to build a line between Ellicotts’ Mills and Wheeling along the track of the road, and stipulated that when completed, it should be the property of the Telegraph Company.

The ninth and eleventh sections are as follow^: 9. “In the event of the dissolution of the said telegraph company, or a suspension of operations on their ²³⁶ part, either involuntary or in consequence of legal process of any kind, then the said railroad company shall he at liberty, and are authorized to take charge of the said telegraph line for their own purposes, with the appurtenances, until the said telegraph company shall resume active operations, and it is expressly understood, that no interest which the said telegraph company may have in said line shall he assignable, so as to affect or impair in any manner the rights of the said railroad company under these articles of agreement.” 11. “And it is agreed that the ownership of the said telegraph company, hereinbefore recognized, of the posts and wires of the telegraph, is to he taken as subject to the performance by the said telegraph company and its assigns, of all stipulations herein contained affecting said telegraph company.” The agreement of 1855 provided for a line from Camden Station to Ellicotts' Mills, and for an additional wire from Camden Station to Cumberland. It will be perceived that by the ninth section of the agreement of 1853, the Railroad Company's right arose in each of two cases; first, the dissolution of the