Cumberland Telephone & Telegraph Co. v. Yazoo & Mississippi Valley Railroad

44 So. 166, 90 Miss. 686

• Court: Mississippi Supreme Court
• Decided: March 15, 1907
• Status: Published

Opinion

Maxes, J.,

delivered the opinion of the court.

The main question to be considered in this case is whether or not a foreign telephone company has the power, under the laws of this state, to exercise the right of eminent domain. That the power to exercise this right and take land for public use by virtue *of eminent domain proceedings can only be exercised by virtue of the authority of the state in whose jurisdiction the land lies is, we think, incontrovertible law. It is conceded in this case that the Cumberland Telephone & Telegraph Company is a nonresident, and not chartered under any law of the state of Mississippi. In the chapter on corporations (§ 925) of the Code of 1906 it is provided that “all companies or associations of persons incorporated or organized for the purpose of constructing telegraph or telephone lines shall be authorized to construct the same, and to set up and erect their posts and fixtures along and across any of the public highways, streets, or waters, and along- and across all turnpikes, railroads, and canals, and also through any of the public lands; but the same shall be so constructed and placed as not to be dangerous to persons or property, nor interfere with the common use of such roads, streets, or waters; or with the convenience of any landowner more than may be unavoidable; and in' case it shall be necessary to cross any highway, the same shall be so constructed as to cross such highway at right angles.” By the above section, which is found in the chapter on corporations only, it will be seen that express authority is given to all companies or associations of pei’sons, incorporated or organized for the purpose of constructing telegraph or telephone lines, 'to construct the same, and to set up and erect their posts and fixtures along and across all turnpikes, railroads, etc. On the reading of this section — that is to say, § 925 of the Code of 1906 — there can be no doubt that the legislature intended to give the authority to all companies . alike, whether foreign or domestic, to construct their lines along and across turnpikes, railroads, etc. It is true that in this section no power of eminent domain is conferred, and, if this section stood alone, no telephone company could avail itself of the authority granted, except by contract with the authority in control of the highways, streets, or waters, or with the owners of the turnpikes, railroads, etc. But under sec. 929, in the same chapter, telegraph and telephone companies, for the purpose of constructing new lines, are empowered to exercise the right of , eminent domain, as provided in the chapter on that subject. Taking, then, these two sections together, we find that by sec. 925 all companies or associations, incorporated or organized for the purpose of constructing telegraph or telephone lines, are given the authority to construct their lines along and across the property named in sec. 925; and by sec. 929 telegraph and telephone companies — that is to say, all telegraph and telephone companies —are empowered to exercise the right of eminent domain for the purpose of constructing new lines. In the whole chapter on corporations the grant of eminent domain powers is found in but one section, and this is in sec. 929, above referred to, and is conferred upon telegraph and telephone companies, whether foreign or domestic, and for the purpose of constructing new lines; and the only other corporation which is given this power in the chapter on corporations is the interurban street railway, and, as with telephone companies, it is given only for the purpose of constructing new lines.

If the sections of the statute quoted above stood alone, there, would be no difficulty about this case. If the two sections quoted were the only places wherein this subject was dealt with in the Code, it would be too plain for argument that the statute not only gives authority to the telephone company to run its line along the right of way of the railroad, but has given it an enforceable authority, in that it has-empowered it, in furtherance of the erection of its line along the right of way of railroads, to condemn the property for the purpose of erecting thereon its telephone line. The confusion grows out of the fact that in another section of the Code the law undertakes to deal again with this same subject. In the chapter on eminent domain (sec. 1876) it is provided that “telephone, telegraph or street railway companies, chartered under the laws of this state, may acquire a right of way across railroads by condemnation by proceeding in accordance with the provisions in this chapter.” Now, note the distinction between sec. 925 and sec. 929, found in the chapter on corporations, and sec. 187 6, found in the chapter on eminent domain. In the first place it will be noted that sec. 925 authorizes all companies or associations of persons, incorporated or organized for the purpose of constructing telegraph or telephone lines, to construct the same, etc. In this section there is no restriction upon the right of any telegraph or telephone company to exercise this authority, whether it be chartered according to the laws of this state or not; but the authority is given generally to all companies or associations of persons incorporated or organized for the purpose of constructing telegraph or telephone lines. In sec. 929 power to exercise the right of eminent domain is given, indiscriminately and without restriction, to “telegraph and telephone companies.” In these two sections nothing is said as to the place where these telegraph and telephone companies are to be chartered. In other words, the general authority is given to any and all telephone companies to construct their lines along railroads, etc., and the general power is given to all telephone companies, when constructing a new line, to exercise the right of eminent domain, irrespective of where they may reside or where they may have procured their charter. Another thing is to be noted in reference to sec. 929, and that is that the authority is not only given to all companies or associations of persons incorporated or organized for the purpose of constructing telegraph or telephone lines to construct same, but the statute expressly says that they may set up and erect their posts and fixtures along and across any of the public highways, railroads, etc. Now by this section authority is expressly given both to run the line along the railroad, and also across the railroad, if necessary. By sec. 1876 the only power given a telephone company to acquire a right of way by condemnation proceedings is, first, that they may only acquire a right of way across a railroad; and, secondly, under this section, the only telephone company which may do this is a telephone company chartered under the laws of this state. The object of the condemnation proceedings in the case before the court is io condemn a right of way along the railroad, as authorized by sec. 925, and not across..

' It is argued by counsel for the respective appellees that under sec. 929, giving to telephone companies the right to exercise the power of eminent domain, it is provided that the right must he exercised as is provided in the chapter on that subject. Turning to the chapter on eminent domain, the only power to exercise the right is given to telephone companies chartered under the laws of this state. From this counsel argue that it necessarily follows that no telephone company, other than a telephone company chartered under the laws of this state, has the power, in any event, to exercise the right of eminent domain, and that even a domestic company can condemn a right of way across a railroad, and not along its right of way. We cannot adopt this construction of the statute. If all the authority which any telephone company has to exercise the right of eminent domain is to be found in sec. 1876, and secs. 925 and 929 are to be disregarded, the telephone business in this state would have to be abandoned. We cannot give the law such an interpretation, for to do so would be to involve the legislature in what might properly be called “legislative nonsense.” Let us see what would follow. In the first place, no company could exercise the right of eminent domain, except a company chartered under the laws of this state. In the next place, they could not condemn property anywhere, except a right of way across the railroad. They would have to establish their office on one side of a railroad right of way, and could only run their lines across this right of way to an office on the- other side. ' They could not leave when they got across, because they have no other power by sec. 1876 except to condemn the right of way across the railroad; nor could they bring their lines to the right of way along the streets or highways, for they have no power under this section except to establish a line across the railroad. In other words, the authority granted by sec. 925 to construct their lines, and set up posts along and across the public highways, streets, or waters, .turnpikes, canals, and through any of the public lands, and the power to exercise the right of eminent domain given them by virtue of sec. 929, all fade out and become a mere nothing before sec. 1876, if it is to be said that this section gives the only powers which telephone companies have under •the laws of this state is to acquire rights of way. When § 929 of the Code says that telegraph and telephone companies, for the purpose of constructing new-lines, may exercise the right of eminent domain as provided in the chapter on that subject, it merely means they must exercise the right according to the procedure outlined in chapter 43 on the subject of eminent domain as being the procedure by which all corporations having the power of eminent domain must proceed when undertaking to condemn property, and does not refer to sec. 1876, the only place in the chapter where telephone companies are mentioned, as being the measure of power which telephone companies have in this state to exercise the right. Even telephone companies chartered under the laws of this state, as provided in see. 1876, when they undertake to assert the right that is given them to acquire a right of way across railroads by condemnation, must proceed in accordance with the provisions “in this chapter”; that is to say, in the chapter on eminent domain, for no other way is pointed out by sec. 1876. When they undertake to enforce the right given by sec. 1876, they must'do exactly what is required of telephone companies by sec. 929 when they undertake to enforce by eminent domain proceedings the authority conferred upon them bysec. 925 of the Code; that is to-say, they must proceed “as is provided in the chapter on that subject” — that is, chapter 43, on the subject of eminent domain.

We are now dealing with the right that a foreign telephone corporation has to erect its along the railroad right of way and the power it has to condemn for this purpose. We are not dealing with any of the rights which are given to telephone companies chartered under the laws of this state according to sec. 1876. The right there given, the only right given, is the right to acquire a right- of way across railroads. We will deal with the power that a foreign telephone corporation has to condemn a right of way across railroads when that question is presented to us. We say nothing as to the effect which sec. 1876 has upon sec. 925 and sec. 929, further than we have expressly stated in this opinion.

Counsel for appellee next insist that, even if it be true that the power of eminent domain is granted to the telephone company, still it is expressly limited to the construction of new lines and cannot be exercised when it is the purpose of the telephone company to merely relocate its poles and wires to subserves its own convenience and economies, even though moving them over comparatively wide spaces, if the line as relocated and reconstructed serves substantially the same group of patrons. We are not disposed to give so narrow a construction to the statute. To do so would be subversive of the public policy of the statute and the evident intention of the legislature. It is our view that a “new line” is constructed, within the meaning of the statute, whenever the telephone company changes its route and runs its line in a different route from that already occupied by it, involving the necessity of taking and occupying land not theretofore occupied by it. The facts in this case show that the telephone company is not now operating, and does not own, a direct line from Jackson to Natchez, or over the route proposed to be acquired by this proceeding. The only means of communication between Jackson and Natchez is by the circuitous route from Jackson to Vicksburg, and from Vicksburg to Fayette, and from Fayette to Natchez. It is proposed to construct a direct line from Jackson to Natchez along the right of way of the Yazoo & Mississippi Valley Bailroad Company running from Jackson to Natchez, and clearly it cannot be argued that this is not the construction of a new line within the meaning of this statute. A like state of facts, the construction of a distinct line from Meridian to Tupelo, is presented in the Mobile & Ohio case.

. The question of equity jurisdiction is settled in the case of Vinegar Bend Lumber Co. v. Oak Grove & Georgetown R. R. Co., 89 Miss., 84, s.c., 43 South., 292.

The motion to dissolve the injunction is sustained in each case, and the case is reversed and remanded.