and, from time to time, to appropriate so much of said lands as may be necessary to erect such poles, piers, abutments, wires and other necessary fixtures for a telephone or magnetic telegraph, and to make such changes of location of any part of said lines as may, from time to time, be deemed necessary, and shall have a right of access to construct said line, and when erected, from time to time, as may be required, to repair the same; and may proceed to obtain the right of way, and to condemn said lands in the manner provided by law. (R. S. 1889, § 2722.)

SEC. 1253. Exclusive privileges not to be contracted for.-No company shall have power to contract with any owner of land for the right to erect or maintain a telephone or telegraph line over his lands, to the exclusion of the lines of other companies organized under the provisions of this article. (R. S. 1889, § 2723.)

SEC. 1254. Power to maintain lines, etc. Any company incorporated as herein provided may contract, own, use and maintain any line or lines of telephone or magnetic telegraph, whether wholly within or wholly or partly beyond the limits of this state, and shall have power to lease or attach to the line or lines of such company other telephone or telegraph lines, by lease or purchase, and may join with any other corporation or association in constructing, leasing, owning, using or maintaining their line or lines, upon such terms as may be agreed upon between the directors or managers of the respective corporations, and may own and hold any interest in such line or lines, or become lessees thereof, on such terms as the respective corporations may agree. (R. S. 1889, § 2724.)

SEC. 1255. Duties and obligations of company. It shall be the duty of every telegraph or telephone company, incorporated or unincorporated, operating any telephone or telegraph line in this state, to provide sufficient facilities at all its offices for the dispatch of the business of the public, to receive dispatches from and for other telephone or telegraph lines, and from or for any individual, and on payment or tender of their usual charges for transmitting dispatches, as established by the rules and regulations of such telephone or telegraph line, to transmit the same promptly and with impartiality and good faith, under a penalty of two hundred dollars for every neglect or refusal so to do, to be recovered, with costs of suit, by civil action, by the person or persons or company sending or desiring to send such dispatch, one-half of the amount recovered to be retained by the plaintiff, and one-half to be paid into the county public school fund of the county in which the suit was instituted; and the burden of proof shall be upon the company to show that the wire was engaged as the reason for the delay in transmitting such dispatch. (R. S. 1889, § 2725-u.)

SEC. 1256. Duties in forwarding dispatches over other lines. Where the person sending the dispatch desires to have it forwarded over the lines of other telephone or telegraph companies,

(u) Section is penal and subject to rules governing penal statutes; can have no extra-territorial force. 108 Mo. 459. As to company's liability for not sending dispatch on Sunday. 32 A. 191; 39 A. 599; 48 A. 566. Telegraph company is not held to same degree of liability as common carrier, and is only liable for negligence or failure to use due care. 57 A. 259. Penalty not incurred by failure to deliver message to party addressed, but only by failure to transmit it over wire. 108 Mo. 459; 54 A. 391. Stipulations on part of company which have been held reasonable. 63 A. 226; 56 A. 192; 50 A. 591; 17 A. 257. Mental suffering alone, unconnected with other injury will not support action for neglect to transmit and deliver message. 116 Mo. 34. Also 30 A. 103; 37 A. 554; 39 A. C01; 45 A. 433; 49 A. 99; 51 A. 375; 58 A. 257; 59 A. 236.

whose termini are respectively within the limits of the usual delivery of such companies, to the place of final destination, and shall tender to the first company the amount of the usual charges for the dispatch to the place of final delivery, it shall be the duty of the company to receive the same, and, without delaying the dispatch, to pay to the succeeding line the necessary charges for the remaining distance; and it shall be the duty of the succeeding line or lines to accept the same, and forward the dispatch in the same manner as if the person sending the same had applied to the agent or operator of such line or lines in person, and paid to him the usual charges; and for omitting so to do the company or companies owning or operating such line or lines shall severally be liable to the penalty prescribed in section 1255. (R. S. 1889, § 2726-v.)

SEC. 1257. Duties of employes.-In all cases where application is made to any telephone or telegraph company, or the operator, agent, clerk or servant thereof, to send a dispatch, it shall be the duty of such operator, agent, clerk or servant who may rceive dispatches at that station, plainly to inform the applicant, and, if required by him, to write upon the dispatch that the line is not in working order, or that the dispatches already on hand for transmission will occupy the time so that the dispatch offered cannot be transmitted within the time required, or promptly, if the facts be so; and for omitting so to do, or for intentionally giving false information to the applicant in relation to the time within which the dispatch offered may be sent, such operator, agent, clerk or servant, and the company by which he is employed, shall incur a like penalty as in section 1255. (R. S. 1889, § 2727-w.)

SEC. 1258. Penalty for transmitting false communications. If any officer, manager, agent or operator of any telephone or telegraph line operating in this state, or any other person, shall knowingly transmit by such telephone or telegraph line any false communication or intelligence with intent to injure any one, or to speculate in any article of merchandise, commerce or trade, or with intent that another may do so, or shall knowingly send or deliver any dispatch that is forged or not authorized by the person whose name purports to be signed thereto, shall, on conviction thereof in the court having criminal jurisdiction in the proper county, be liable to the same penalty as is provided in section 1255. (R. S. 1889, § 2728.)

SEC. 1259. Liability for disclosing contents of dispatch, and for negligence in sending messages.-Every telephone or telegraph company now organized, or which may hereafter be organized under the laws of this state, shall be liable for special damages occasioned by the failure or negligence of their operators or servants in receiving, copying, transmitting or delivering dispatches; and for the disclosure of any of the contents of any private dispatches to any person other than to him to whom it was addressed, or to his agent, they shall be liable to the sender of the dispatch and to the person to whom it was addressed, in the sum of fifty dollars to each, recoverable by an action before a justice of the peace, and for all special damages in addition thereto. (R. S. 1889, § 2729-x.)

(v) 41 A. 443.

(w) 57 A. 265; 59 A. 241.

(x) Telegraph company cannot by contract exempt itself from liability for negligence of its servants in transmission of messages. 135 Mo. 661. Telegraph messages

SEC. 1260. Mode of construction may be directed, by whom.-The mayor and aldermen or board of common council of any city, and the trustees of any incorporated town, through which the lines of any telephone or telegraph company are to pass, may, by ordinance or otherwise, specify where the posts, piers or abutments shall be located, the kind of posts that shall be used, the height at which the wires shall be run; and such company shall be governed by the regulations thus prescribed; and after the erection of said telephone or telegraph lines, the said mayor and aldermen, or board of common council, and the trustees of any incorporated town, shall have power to direct any alteration in the location or erection of said posts, piers or abutments, and also in the height at which the wires shall run, having first given such company or its agents opportunity to be heard in regard to such alteration. (R. S. 1889, § 2730—y.)

ano

SEC. 1261. Destruction of property misdemeanor.—Any person who shall unlawfully and intentionally injure, molest or destroy any of the lines, posts, piers, abutments or other material or property pertaining to any line of telephone or magnetic telegraph erected in this state, shall be deemed guilty of a misdemeanor, and shall, upon conviction, be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment, at the discretion of the court having cognizance thereof. (R. S. 1889, § 2731.)

SEC. 1262. May consolidate with other companies.Any telegraph company now organized, or which may hereafter be organized, under the laws of this state, may at any regular meeting of the stockholders thereof, by vote of persons holding a majority of the shares of the stock of such company, unite or consolidate with any other company or companies now organized, or which may hereafter be organized, under the laws of the United States, or of any state or territory, by consent of the company with which it may consolidate or unite, and such consolidated company so formed may hold, use and enjoy all the rights and privileges conferred by the laws of Missouri on companies separately organized under the provisions of this article, and be subject to the same liabilities. (R. S. 1889, § 2732.)

SEC. 1263. Shall possess what powers.-All corporations formed under this article shall possess all the powers and privileges granted to corporations by article one of this chapter, relating to the general powers of private corporations, and be subject to all the provisions thereof except as herein, otherwise provided. (R. S. 1889, § 2733.)

in possession of officers of company are not privileged communications, and courts 'can compel their production by supoena duces secum, giving reasonably accurate description of messages wanted. 72 Mo. 83; 7 A. 484. Presumption as to answer over telephone. 77 A. 258; 54 A. 446.

(y) See 23 A. 185; 31 A. 23.

ARTICLE VII.

APPROPRIATION AND VALUATION OF LANDS TAKEN FOR TELEGRAPH, TELEPHONE, GRAVEL AND PLANK OR RAILROAD PURPOSES.

SEC. 1264. Lands may be condemned, when-petition, etc.-In case lands or other property are sought to be appropriated by any road, railroad, telephone, telegraph or other corporation created under the laws of this state, for public use, and such corporation and the owners cannot agree upon the proper compensation to be paid, or in case the owner is incapable of contracting, be unknown, or be a non-resident of the state, such corporation may apply to the circuit court of the county where said land or any part thereof lies, or the judge thereof in vacation, by petition, setting forth the general directions in which it is desired to construct their road, railroad, telephone or telegraph line over such lands, a description of the real estate or other property which the company seeks to acquire, the names of the owners thereof, if known, or, if unknown, a pertinent description of the property whose owners are unknown, and praying the appointment of three disinterested freeholders as commissioners, or by a jury, to assess the damages which such owners may severally sustain in consequence of the establishment, erection and maintenance of such road, railroad, telephone or telegraph line over such lands; to which petition the owners of all such parcels as lie within the county or circuit shall be made parties defendant, by name, if the names are known, and by the description of the unknown owners of the lands therein described, if their names are unknown. If the proceedings seek to affect the lands of persons under guardianship, the guardians must be made parties defendant; if the land of married women, their husbands must be made parties defendant. If the present owner of any land to be affected has a less estate than a fee, the person having the next vested estate in remainder may, at the option of the petitioners, be made party defendant; but if such remainder men are not made parties, their interests shall not be bound by the proceeding. It shall not be necesary to make any persons party defendant in respect to their ownership, unless they are either in actual possession of the premises to be affected, claiming title, or have a title to the premises appearing of record upon the proper records of the county. (R. S. 1889, § 2734-z.)

(z) Article construed. 120 Mo. 30. These proceedings are purely statutory, and the utmost strictness is required to make them valid; every fact necessary to confer jurisdiction must appear on face of proceedings. 51 Mo. 200; 103 Mo. 451; 113 Mo. 660. Article applies to corporations organized under either general or special laws. 67 Mo. 438. Railroad may, in order to condemn land, resort to special charter or to general law. 100 Mo. 282. Petition held sufficient. 54 Mo. 334; 100 Mo. 282. Commissioners'

SEC. 1265. Summons, when to issue, how served-publication, when.-Upon the filing of the petition, a summons shall be issued, giving such owner at least ten days' notice of the time when said petition will be heard, which summons shall be served by the sheriff of the county, in the same manner as writs of summons are or may be by law required to be served. If the name or residence of the owner be unknown, or if the owners, or any of them, do not reside within the state, notice of the time of hearing the petition, reciting the substance of the petition and the day fixed for the hearing thereof, shall be given by publication for three weeks consecutively, prior to the time of hearing the petition, in a newspaper published in the county in which the proceedings are pending, if one is published in the county, or if no newspaper is published in the county, or the publisher shall refuse to publish the same on tender of his usual charges for advertising, then by posting up said notice for three consecutive weeks at the door of the court-house of the county wherein the lands or any portion of them lie. (R. S. 1889, § 2735—a.)

SEC. 1266. Appointment of commissioners-duties of. The court, or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, resident of the county in which the real estate or a part thereof is situated, to assess the damages which the owners may severally sustain by reason of such appropriation, who, after having viewed the property, shall forthwith return, under oath, such assessment of damages to the clerk of such court, setting forth the amount of damages; and should more than one owner be included in the petition, then the damages allowed each shall be stated separately, together with a spcific description of the property for which such damages are assessed, and the clerk shall file said report and record the same in the order-book of the court; and thereupon such company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid; and upon failure to pay the assessment aforesaid, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the said company shall, within ten days from the return of such as

report must describe land. 85 Mo. 448. Description of land sufficient when it refers to plat filed with report showing location of road. 96 Mo. 611. Railroad in securing land for tracks by condemnation proceedings acquires only an easement therein. 121 Mo. 169. And widow not dowable in easement. 122 Mo. 375, 396; 112 Mo. 103. To whom compensation should be awarded. 122 Mo. 396; 110 Mo. 147; 99 Mo. 199; 86 Mo. 473. For failure to pay compensation assessed, owner may resort to ejectment or injunction, when. 100 Mo. 282. Railroad may, in diminution of damages offer to construct open crossings to aid owner in use of his land. 121 Mo. 169. Prior contract for location of road no bar to proceeding by corporation to condemn right of way across land on different line. 67 Mo. 438.

(a) Notice of appropriation and condemnation of land, what sufficient. 43 Mo. 35; 100 Mo. 282; 54 A. 529. In case defendant and his atorney are non-residents. 120 Mo. 30. Failure to serve land-owners with copy of petition does not render petition void, when. 110 Mo. 147. Where non-resident appeared by attorney court acquired jurisdiction over him. 117 Mo. 138. When records of court recite that defendant was duly served with process it is competent to overthrow such recital, how. 125 Mo. 574. Minor must be served in same manner as adult. 62 Mo. 585.