Trust Co. v. Railroad Co.

is not limited by State lines, and knows no boundaries, except national. The electric telegraph line is, at this day and time, as much a common carrier and national highway, in the transmission of telegraphic business and intelligence, as the railroads and steam vessels; and the United States government will not permit its citizens to be compelled to do business with any one single individual or corporation, when other individuals and corporations offer to invest capital and engage as competitor for a share of the public and private business. The government has reserved to itself and its citizens the right and privilege to share in the convenience and advantages produced by competitors for their patronage and support. In Mercantile Trust Co. v. Atlantic & P. R. Co., 63 Fed. Rep. 513, a case exactly similar to the case at bar, United States District Judge Ross, in passing upon the same clause, in the same contract entered into between the Atlantic & Pacific Railroad Company, in a very lucid opinion reviewed the several Congressional acts and decisions of the courts on that subject, and held the clause here in question contrary to public policy, in restraint of trade and commerce, and void.

But, it is insisted by appellee the Western Union Company that the act of Congress in question does not apply because it is shown by the record that a portion of the right of way of the New Mexico & Southern Pacific Railroad is over and through, in part, private property, obtained by the railroad company by purchase, or by condemnation proceedings under the statute. In passing on this point, raised in the case of Pensacola Tel. Co. v. W. U. Tel. Co. supra, the Supreme Court of the United States say: "It is insisted, however, that the statute extends only to said military and post-roads as are upon the public domain; but this, we think, is not so. The language is, 'through and over any portion of the public domain of the United States, over and along any of the military or post

Trust Co. v. Railroad Co.

roads of the United States which have been or may be declared such by act of Congress, and over or across the navigable streams or waters of the United States.' There is nothing to indicate an intention of limiting the effect of the words employed, and they were, therefore, to be given their natural and ordinary significance." The Santa Fe Company never obligated itself to do more than it has done. It simply sold and conveyed to the Western Union Company a one-half interest in its telegraph lines and telegraph business, for the consideration therein stated, and obligated itself to protect the Western Union Company in its exclusive privileges only in so far as it might legally do, and it has fufilled its covenants by carrying them out on its part, and submitting the question as to the legality and binding force of these covenants to the courts for their interpretation and construction. Entertaining these views, the court below erred in sustaining the demurrer interposed by the appellee in behalf of the Western Union Telegraph Company. The decision of the court below is therefore reversed, and the cause remanded, with directions to the District Court to overrule the demurrer, and proceed in accordance with this opinion.

SMITH, C. J., and HAMILTON, BANTZ and COLLIER, J.J.,

concur.

NOTE.-See note to next case.

Telegraph Cable Co. v. Railroad & Steamship Co.

POSTAL TELEGRAPH CABLE COMPANY OF LOUISIANA V. MORGAN'S LOUISIANA & TEXAS RAILROAD & STEAMSHIP COMPANY.

Louisiana Supreme Court, Jan. 4, 1897.

TELEGRAPH LINE ON RAILROAD RIGHT OF WAY.-POST-ROADS ACT.CONDEMNATION.

(Head-note by the court):

Act No. 124, of 1880, gives the right to construct a telegraph line over a railroad's right of way.

The acts of Congress of 1866 and 1872 are on the same subject, and give the right to construct a line of telegraph, under certain conditions, along and over the right of way of railroads. The State law is subordinate to these acts, but may be resorted to for condemnation and compensation.

Doctrine as to damages awarded by the jury in condemnation cases, in case of Telegraphic Cable Co. v. Railway Co., 43 La. Ann. 522, affirmed. Case of this series cited in opinion, appearing in bold faced type: Pensacola Tel. Co. v. W. U. Tel. Co., vol. 1, p. 250.

APPEAL by defendant from judgment of Civil District Court, Parish of Orleans.

Denegre, Blair & Denegre, for appellant.

Farrar, Jonas & Kruttschnitt and J. H. McLeary, for appellee.

MCENERY, J.: The plaintiff corporation, organized under the laws of Louisiana, instituted this suit to obtain the condemnation of the property of the defendant corporation necessary for the operation of its line of telegraph over the right of way of the defendant corporation. There was an exception of no cause of action filed. The ground of the exception is that Act No. 124 of

Telegraph Cable Co. v. Railroad & Steamship Co.

1880 does not authorize the construction

of a tele

con

graph line over the right of way of the defendant corporation; that said act only authorizes the struction parallel to and beyond the right of way, as the right of way is essential to the proper and successful operation of the railroad, and that the construction of telegraph lines would, by multiplication of wires, interfere with the running of trains, and the possible falling of poles would endanger the safety of trains. The act authorizes the construction of telegraph lines along and parallel to any of the railroads in this State. It does not state how far they shall be from the railroad, but there is a proviso that there shall be, by the construction of the lines of telegraph, no obstruction in the way of the operation of the railroad. If the location of the line is too near the road, the pleadings in this case do not warrant us in passing upon this fact. The question presented is, first, is there authority in said act for the use of a part of the right of way to construct said plaintiff's line? and, second, the amount of compensation to be awarded the defendant.

So far as the location of the telegraph line over defendant's right of way is at issue, the act of Congress of July 24, 1866, provides "that any telegraph company now organized, or which may hereafter be organized under the laws of any State of 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 said lines shall not be sc constructed as to interfere with 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 its written appearance with the postmastergeneral of the restrictions and obligations required by this act." Congress, in 1872, declared all the railroads in the

Telegraph Cable Co. v. Railroad & Steamship Co.

country, which are now or may hereafter be in operation, post-roads. The plaintiff corporation has filed its appearance and acceptance of the provisions of the act of 1866. The defendant contends that, as the plaintiff is proceeding under the act of 1880, he must be confined to its provisions.

But the act of Congress is paramount, so far as location or the right of way is concerned, and the act of 1880 is auxiliary to it, and provides for the method of condemnation and compensation. The act of Congress of 1866 authorizes no compulsory process. Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1. Hence the necessity of resorting to State process for condemnation and compensation.

On the merits we find some difficulty in arriving at a satisfactory conclusion as to the amount which should be awarded the defendant for the use of the right of way. The inconvenience which the defendant may experience is controverted. It is asserted by plaintiff's witnesses that the establishment of the telegraph line will cause no inconvenience to defendant, but, on the contrary, will be an advantage. This defendant's witnesses deny, and we believe with them that inconveniences may occur and additional burdens may be imposed upon defendant. But we have no means of ascertaining the amount of damage in money that would be inflicted upon defendant. This inconvenience is an element, however, to go into the general estimate. The lands may, along defendant's right of way, be of peculiar or particular value for specific purposes, but we do not understand that they are now devoted to these purposes. The plaintiff must, however, make compensation proportionately for the cost and expense of defendant in putting in condition the right of way. It cannot avail itself of improved conditions without compensation. The construction of plaintiff's line will occupy a right of way of defendant of some ten feet, with its cross pieces on poles.