Southwestern Railroad v. Southern & Atlantic Telegraph Co.

46 Ga. 43

Opinion

Warner, Chief Justice.

This was a bill filed by the Southwestern Railroad Company, and the Westez-n Union Telegraph Company, against the Southern and Atlantic Telegraph Company, praying for an injunction to restrain the latter company from erecting and constructing a line of telegraph on the right of way heretofoz-e granted by the General Assembly to the Southwestern Railroad Company, On hearing the application for the injunction, the Judge refused to gz-ant it, and the complainants excepted. The defendant is a foreign corporation, created and chartei-edby the laws of the State of New York, and claims the right to construct, erect and maintain its line of telegraph upon the right of way of the Southwestern Railroad Company, under an Act of the General Assembly of this State, passed on the 26th August, 1872. There can be no doubt, we think, that it was competent for the General Assembly, in the exez-cise of its soverign authority, to grant to this foreign corporation the privilege and right to erect, construct and maintain its line of telegraph upon the public domain of this State, if in its judg ment, the public interest required it, with this limitation, however, that it could not authorize this foreign corporation, or any other corporation, to take private property for that purpose, without providing that just compensation should be made to the owners of the private property so taken and appropriated, in the erection and construtcion of its telegraph line; and the main controlling question in this case is, whether such provision has been made by the Act under which the defendant claims. The third section of the Act declares, “ that in the event that any railroad company should deem that they had sustained damage by reason of the location of a telegraph line over their right of way, the damage, if any, shall be assessed and paid as follows : The railroad company shall select one commissioner, and the person or telegraph company constructing such telegraph line shall select another, and these two shall select a third, and the three persons thus selected shall assess the damage, if any, and the amount so awarded by them shall be paid by the person or telegraph company constructing said line, to the railroad company.”

It is a fundamental principle of the law that private property shall not betaken for the use of the public without just compensation, and the term just compensation, in the sense of the law, means that it shall be paid for at a fair valuation. Protection to person and property is the paramount duty of government, and shall be impartial and complete: Constitution of 1868.

The right of way of the Southwestern Railroad Company, including three hundred feet on each side of the same, is vested in that company. The fourth section of its charter vests the fee simple of the land constituting the right of way in the company, and it is the private property of that corporation ; and the Southern and Atlantic Telegraph Company have not the legal right permanently to appropriate any part of its right of way —its private property — for the erection and construction of its telegraph line, without first paying the company therefor. Does the Act of the General Assembly, under which the defendant claims the right to appropriate and use the complainant’s right of way, provide for such payment as is contemplated by the fundamental law of this State ? The Act simply provides for an arbitration to assess and award the damages sustained by reason of the location of the telegraph line of the defendant, (a foreign corporation,) on the right of way of the complainant’s road. There is no provision made in the Act for the enforcement of the award against the property of the defendant, either by a judgment thereon or otherwise. The complainants could not enforce that award for damages, except by a common law suit instituted for that purpose. There is no remedy provided by the Act for the enforcement of the award, even if the parties should voluntarily consent to submit the question of damages to arbitration; and if they should not voluntarily consent or fail to do so, there is no provision made to compel them. Besides, it isa fundamental principle of the law, as old as Magna Charla, that no person, either natural or artificial, shall be deprived of his property but by the judgment of his peers and according to the law of the land. The Constitution of 1868 declares “that the right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate.”

There is no provision in the Act for an appeal from the award of the arbitrators to any Court so as to have the question of damages tried by a jury, and a judgment entered up on their verdict binding the defendant’s property, and the result would be, that the complainant would be deprived of his private property for the benefit of the public, (assuming that its appropriation by the defendant is for the benefit of the public interest,) with no other security for its payment than an award of the three arbitrators against a foreign corporation, with no remedy provided by the Act for its enforcement against the property of the defendant. This is not such a just compensation for the taking of private property for public use as the fundamental law of the State contemplates. In the case of Doe ex dem. of Carr vs. The Georgia Railroad Company, (1st Kelly, 532;) the question whether a judgment against the company for the damages assessed, to be enforced by the ordinary process of the Court, or adequate security being given by the company to the landholder to pay the damages, was such a just compensation for the public use of private property as contemplated by the Constitution, was not decided in that case, but left as an open question. But in the Act of 1872, under which the defendant claims the right to take the complainant’s private property for public use, there is no provision made for even a judgment on the award, or any other means provided for its enforcement against the property of the defendant; no provision made for a trial by jury on an appeal from the award, so as to entitle the complainant to a judgment on the verdict of a jury for the damages which would bind the property of the defendant. Under the provisions of the Act of 1872, there is no security or protection given to the complainant for taking its private property for the use of the public, unless the defendant chooses voluntarily to pay for it. As was said in the case of Parham vs. The Justices of Decatur county, (9 Georgia Reports, 355,) “The progression of this age requires the frequent exercise of the right of eminent domain, the necessity of right and liberty require that the citizen be paid when he is injured by it; and this Court is here to see to it that he is paid.” In our judgment the Act of 1872, under which the defendant claims the right to enter upon the complainant’s right of way, its private property, for the purpose of erectingj constructing and maintaining its line of telegraph for the benefit of the public, is unconstitutional and void for the reasons heretofore stated, and that the injunction prayed for was the appropriate remedy in view of the facts of the case, and should have been granted. The only apparent interest which the Western Union Telegraph Company has in the question, arises from the fact of its contract with the Southwestern Railroad Company for the exclusive use of its right of way, to operate and maintain its own line of telegraph, and being interested under that contract, it was a proper party to the bill to the extent of that interest only.

Let the judgment of the Court below be reversed.