Baltimore & Ohio Telegraph Co. v. Morgan's Louisiana & Texas Railroad & Steamship

37 La. Ann. 883

• Court: Supreme Court of Louisiana
• Decided: December 15, 1885
• Docket: No. 9328
• Status: Published

Opinions

The opinion of the Court was delivered by

Todd, J.

This is a proceeding- instituted by the plaintiff corporal ion to expropriate land occupied by the defendant railroad company, as its right of way for the purpose of establishing aud constructing its line of telegraph from the city of New Orleans to Lafayette.

The Western Union Telegraph Company intervened in the suit, claiming a right to the use of this roadway aud possession of the same for its own telegraph purposes, under a contract with the railroad company defendant, and praying for damages against the plaintiff company, should it succeed in obtaining the expropriation asked for in this suit.

From a judgment in favor of the plaintiff and against the defendant and intervenor, the two latter have apipealed.

1st. We will first direct our attention to the motion to remove the cause to the Federal Courts made by the Western Union Telegraph Company, so soon as its intervention was filed and allowed.

This company (the intervenor) was chartered by the State of New York, where it has its domicile. The plaintiff aud defendant companies are domiciliated in this Slate.

This application for removal was made under the alleged authority of the second section of the Act of Congress of the 3d of March, 1875,. conferring upon the Federal Courts jurisdiction in certain eases therein enumerated.

An analysis of this section shows, that it consists of two clauses,, and that by the first clause removal is allowed only in the following; eases:

1st. The amount in dispute must exceed $500, and must arise under the Constitution and laws of the United States or treaties made or which shall be made under their authority.

2d. Or a suit at which the United States shall be plaintiff.

3d. Or one between citizens of the same State, claiming lands under grants of different States.

4th. Or a suit between citizens of a State and foreign States, or the citizens or subjects of foreign States.

fit'll. Or a suit iu which there shall be a controversy between citizens of different. States.

It is evident, that the removal in the instant case could not be allowed unless under the provision last cited, bat the second clause of this section prescribes not only that the controversy must be wholly between citizens of different States, but must be one which can be fully determined between them without the presence of the other parties to the record.

Now, this proceeding was resorted to by the plaintiff for one specific purpose: that is to have condemned for its use enough of the right of way of tiie railroad company, for the erection and maintenance of a line of telegraph from the points designated.

Both plaintiff and defendant are citizens of Louisiana. The intervenor, a citizen of New York, asserts a similar right on the property of the company to that asked by the plaintiff, as already obtained by contract, and a right conflicting with and excluding the claim made by the plaintiff.

It is difficult to see how the claim of the plaintiff against the railroad .company and the right of the iutervenor apon the property of the same company, and the respective and conflicting claims of the plaintiff and iutervenor could be determined in the absence of the railroad company, whose property forms the very corpus or subject matter of the controversy.

There is, however, one feature of the case presented by the record that places this matter beyond doubt.

The iutervenor, (Western Union Telegraph (Jo.,) though asserting an exclusive light, iu itself over the road-bed for telegraph purposes, does not pray for a decree recognizing such right in its favor, and rejecting by reason thereof the adverse claim of the plaintiff, but merely asks that, in the event the plaintiff company obtains a decree ordering the expropriation sued for, then and in such ease the intervening company recover of the plaintiff company tiie value of the land expropriated. That is, the only relief asked for by the Western Union Telegraph Company is predicated and contingent upon the judgment that may be rendered in favor of the Baltimore and Ohio Telegraph Company (plaintiff) against tiie railroad company, defendant, which judgment can only bo rendered, if rendered at all, in the State Court, since the controversy as between tiie latter two companies—citizens of the same State -is one confessedly 11011-removable.

We are therefore clearly of opinion that the motion to remand was properly overruled. See Hyde vs. Ruble, 104 U. S. 407; Corbin vs. Van Brant, 105 U. S. 570; Fraser vs. Johnson, 106 U. S. 191; Memphis and Charleston R. R. Co. vs. Alabama, 107 U. S. 581.

II.

A number of exceptions were filed by the defendant to the plaintiff’s proceeding; among them we find:

1. One denying or questioning the validity of the charter of the plaintiff Baltimore and Ohio Telegraph Company (plaintiff) on the ground that a law of the State (Sec. 685, R. S.) required that the charter of a corporation must-declare among other things “the time when and the manner in which payment on stock subscribed shall be made;” ■ anxl that the charter, in this instance, only prescribes that the capital stock “shall be paid in cash, at such times and in such amounts, and with such notices to the subscribers, as the managers and directors of said corporation, or a majority thereof, shall deem for the best of all parties in in terest.”

We think this clause in the charter is a substantial compliance with the iaw.

The subscription fixed the amount of the stock subscribed, and the liability therefor. The stock is to lie 'paid for by the terms of the charter in installments, as ordered by the managers and directors, and in cash after ten days’ notice. This seems sufficiently definite and certain; and in this opinión we are confirmed by the legislative construction given this clause of the statute by a number of charters granted from time to time to various corporations by the legislature. Among others we find that the charter to the company defendant in this case, and which sets up this plea—the Morgan’s Louisiana and Texas Railroad Company—contains almost the identical words on this point that the charter of the plaintiff company-'-the language being as follows:

“The time and manner of payment for stock shall be such as may be determined by the board of directors.” Sec. 10, Act 87 of 1877.

Tite same language may he found in Act 97 of 1877, incorporating the Barataría Shi]) Canal Company, Sec. 4 ; and also in the charter of the New Orleans and Jackson R. R. Go., Act 1858, p. 109, and in that of the Mississippi and Lafourche R. R. Co., Act 108 of 1855, and in several other legislative charters unnecessary to enumerate.

2. Another exception was to the effect that “the map or plan filed together with the petition was not snch a plan of the right of way as the law required.”

We have attentively examined both the petition and the map annexed thereto, and when we consider that the purpose of the proceediug was to obtain an expropriation of land along the line of a railroad long established and well known and defined, sufficient to erect telegraph poles, and further consider that the reason of this requirement was simply to give intelligible information as to the situation or locus of the land wanted and its condition, it is too clear for argument that the description in the petition and delineations in the accompanying map fulfilled completely all legal requirements. There was no possibility of mistake as to what was sought by the suit.

3. Another exception to the plaintiff’s suit was:

That the jury impanneled to value the property sought to be expropriated, is from the parish of Orleans and is called upon to value property situated out of said parish.

Section 098 of the Revised Statutes prescribes that in cases of expropriation,, the party seeking the appropriation must apply to the judge of the district in which the land may be situated, or if it extends into two districts, to the judge of the district in which the owner resides.

The owner of the Morgan Railroad is the defendant corporation, having its domicile in the parish of Orleans. The land sought to be expropriated extended into two or more districts. The charter of the company moreover provides that it must be sued in the parish of Orleans, that is at its domicile. Therefore the institution of the proceeding in question before the Civil District Court for the parish of Orleans was compulsory, since no other court, under the law referíed to, liad jurisdiction of the matter.

This law further provides that the judge shall indorse on the petition presented an order directing the clerk to give notice to the owner of' the land sought to be expropriated, and that immediately after this order shall have been made by the judge, the clerk and sheriff shall make a list of forty-eight free holders, residents of the parish where the land lies, out of which number shall be drawn the jury to determine the value of the land.

Now it is evident if the court of the domicile of the owner has sole and exclusive jurisdiction of the suit, the officers of that court, the clerk and sheriff, could not go outside of that jurisdiction to select a list of jurors to sit. in the case: they, of course, must be confined in their selection to jurors resident of the parish where the suit was-brought.

The judge himself would be powerless to direct the drawing or selection of jurors in other parishes beyond his jurisdiction. Therefore to give any effect to the law providing for a proceeding of this kind, it-was absolutely necessary that the jury shouldbe drawn from the parish or parishes within the jurisdiction of the court before which the suit was pending. If any attempt had been made to institute separate-proceedings in each of the parishes over which the land extended, it is evident that such attempt would or could have been defeated by a plea to the jurisdiction, since no other court, in such case, could entertain the application under the positive provisions of the law save the court of the domicile of the owner, which, in this instance, was the Civil District Court of the parish of Orleans, and in which parish, it is-conceded, that the land in part was situated. This conclusion is irresistible when we consider the several sections of the statute, guided by that rule of construction which seeks to harmonize the apparently conflicting parts in order to render it effective as a whole.

There were other exceptions made, which are not seriously pressed before this Court and which, in our opinion, are without force. The-exceptions were all properly overruled.

III.

The only remaining contention on the part of the defendant is, that the compensation allowed for the land expropriated was wholly inadequate. We have carefully weighed the testimony on this point, which to some extent is conflicting, but when we consider the small quantity of land required for the erection of the poles and the construction of' the telegraph line, and the use of which cannot possibly interfere with or obstruct in the least the right of way of the railroad company or impair in any manner the operation of its line, we are not disposed to disturb the estimate of the jury, which was fixed by their verdict at two thousand one hundred dollars.

IV.

T n k Inte it v ent ion.

As before stated, the object of the intervention of the Western Union-Telegraph Company was (o recover from the iilaintiff company a sum equal to the amount that might he assessed by the jury as the value of" the land expropriated in the event of a judgment decreeing the expropriation. This demand was founded on a contract between the inter - venor and the Morgan Railroad Company, in which the exclusive use for telegraph purposes was granted by said company.

This contract was offered in evidence both by tlie Western Union and the Morgan Company. By the first not for the purpose, as stated in the bill.of exceptions, “of establishing any exclusive use of the right of way for its lino of telegraph,” “which would interfere with the State’s right of eminent domain,” “but for the purpose of showing the usufruct and base of said right of way granted to the intervenor,” and by the defendant company it was offered with a view of showing the value of the land sought to be expropriated by the plaiutiff.

The court properly sustained the objection of the plaintiff’s counsel to the admission of the contract for the purpose for which it was •offered by the defendant, since plaintiff was no party to that contract and the consideration given by the Western Union, purporting to bo for the exclusive use of the entire right of way for its line, was no criterion of the value of the modicum of the land sought to be obtained by the plaintiff for its purposes.

The court, however, erred we think in rejecting the contract on the ■objections made when offered in evidence, by the intervenor.

The main objection was, that the grant of the exclusive use of the right of way for telegraph purpose to the intervenor, was contrary to law and public policy, and rendered the contract void. This plainly went to the effect of the contract or the evidence, and so in fact did ■ every other objection made and noted in the bill.

We find the. contract in tlie record and shall ti oat it as properly before us.

It is plain that the claim of the intervenor to recover of the plaintiff' whatever sum the jury might ñx upon as the value of the land expropriated for the use of the Baltimore and Ohio Telegraph Company, can rest alone on the theory of an exclusive grant to the intervening company under its contract with the Morgan’s Railroad Company. In the petition of intervention there is no special damage alleged as resulting from the expropriation or the use of the land to he expropriated by the plaintiff.

It is not charged that such use by the plaintiff will interfere with or -obstruct the operation of the intervenor’s line, or that the right of way of the railroad company is not sufficient for the working of both lines •of telegraph; and leaving out the question of the exclusive, grant to the Western Union Company—which the contract, with the railroad ■company plainly purports to convey—it would seem clear that the petition of intervention on the very face of it sets forth no cause, of action.

Inasmuch, therefore, as the intervenor asks for no judgment against, the plaintiff decreeing or recognizing its exclusive use for telegraph purposes of this right of way of the roilroad, but, on the contrary, -expressly declines in the petition to press such a claim and disclaims .any purpose or intention to assert any such exclusive right under the contract, and moreover, as we are fully satisfied that no damage could result to the intervening company by the mere construction of plaintiff’s line of telegraph,—we think, therefore, for these reasons alone, we are justified in rejecting the intervention, without discussing and determining the effect of this exclusive grant contained in the contract and deciding whether it was legal or illegal, valid or void, a point upon which a lengthy argument has been submitted to ns by the plaintiff’s counsel.

Nevertheless the question naturally suggests itself as to which company—the railroad company or the Western -Union Telegraph Company—should receive the sum awarded by the jury as the value of the-expropriations, and which sum was paid into court by the plaintiff. This question, however, we cannot now determine, since there is no issue raised in the pleadings between these two last named companies, touching their respective, claims thereto. We have only decided that the plaintiff was legally entitled to the expropriation, and mast pay, therefore, the. sum fixed by the verdict of the jury. The rights of the intervening and defendant companies not being put at issue, nor passed upon with respect to this fund are of course reserved.

Judgment affirmed.