Western Union Telegraph Co. v. Williams

8 L.R.A. 429, 11 S.E. 106, 86 Va. 696, 1890 Va. LEXIS 36

• Court: Supreme Court of Virginia
• Decided: March 27, 1890
• Status: Published

Opinions

Lacy, J.,

delivered the opinion of the eonrt.

This is a writ of error to a judgment of the circuit court of New Kent county,' rendered on the 30th day of October, 1888. The plaintiff in error constructed its telegraph line upon the county road in New Kent county, where the said road ran over the lands of the defendant in error without his consent and without condemnation proceedings, and without tendering compensation, and refusing’ to pay compensation therefor. As is alleged in the declaration “ against the will, of the plaintiff, .and violently against the protest of the plaintiff, entered upon the said lands and cut down and destroyed the trees and under-wood—fifty pine trees, twenty oak trees, and other trees of the value of $1,950 - and broke down and prostrated a great part of the fences of the said plaintiff, and dug holes in the land of the plaintiff, and put posts there and kept the same there, &c., and encumbered the lands and hindered the plaintiff in the free use and enjoyment thereof.” The defendant pleaded not guilty, and moved the court to remove the case to the, federal court, which motion to remove the. case the court overruled, and the case proceeded to a trial; and upon the trial the jury rendered a verdict in favor of the plaintiff for the sum of $550, upon which judgment was rendered, accordingly. Whereupon the defendant, the plaintiff in error here, applied for and obtained a writ of error to this court.

There were sundry exceptions taken at the'trial, which were assigned as error here. The first assignment which we will consider, is as to the refusal of the court to give to the jury certain instructions asked by the defendant, and the giving by the court of certain other instructions. The plaintiff" moved the. court to instruct the jury to the following effect: That “if the jury believe from the evidence that the defendant was at the time of the committing of the alleged trespass, in the declaration mentioned, and still is a telegraph company chartered by this or any other state, and that the road along which it has constructed, and maintained, and still is maintaining its telegraph line in the county of New Kent, was at said time and still is a county road, then the said defendant had, at said time, and still has the right to construct and maintain its said line along said county road, upon any part thereof, to the width or extent of thirty feet (whether the road-bed actually used by the public was and is of such width or not), provided the ordinary use of said road be uot thereby obstructed, and said defendant had at said time, and still has, the right to cut down and trim out such trees or limbs within such width or extent of thirty feet as might interfere with the proper and effective construction, maintenance, and operation of its said line. (2) Tor the exercise of such right as aforesaid the defendant is not required to obtain permission from, or to make compensation to, the owner or owners of the land upon which said road is located (whether the fee-simple title to the soil upon which the road is located, or the mere easement thereon, be vested in the public). (8) The jury are further instructed that, although the road-bed of sajd road actually used by the public may not he or have been of the width of thirty feet, and although the overseer of said road may not have compiled with the law, in keeping said road clear and smooth and free from obstructions to the legally required width of thirty feet) yet, under the laws and statutes of the commonwealth, the defendant eompany was authorized to use any part of said legal road of thirty feet to the same extent as if said overseer had strictly complied with the provisions of law requiring him to keep said road clear of timber and other obstructions to the required width, and the whole thirty feet been actually used by the public as a road.”

But the court refused to give these instructions of the defendant, and gave the following: (1) The court instructs the jury that the law presumes that the ownership of lands along-the side of a public road in Virginia extends to the middle of said road, and the burthen of proof is upon the party who claims otherwise to show that such is not the case along the road when the right is controverted, and the owner has the exclusive right to the soil, subject to its use for the purposes of the public, and to the right of passage of the public over the same, and being owners of the soil they have a right to all of the ordinary remedies for disturbing of, or injury to their freehold or possession, and any act of the legislature which divests such owners of their rights is unconstitutional and void. (2) The fact that a road is a public road, or highway, does not authorize the digging of holes for the purpose of erecting telegraph posts, and the erecting of posts, and the establishing a telegraph line over the land of a person without his consent, although the same may be erected or done on that part of his premises which is used as a public road.” Tt thus appears that the claim of the defendant is that by reason of the act of assembly of February 10th, 1880 (Acts 1879-80, p. 53-54), it was authorized to construct its telegraph poles and lines along the lands over which the county road runs without making compensation therefor, and that it maintains its right to exercise as-to these lands the right of eminent domain therein, take and enjoy what belongs to another, in the exercise of the sovereign power, not only without making any compensation therefor, but without any formal proceedings looking to condemnation of this property under any of the forms of law whatever.

If it is once conceded, or anywise established, that the land in question belonged to the plaintiff, it was his private property, his freehold, as entirely his own throughout all its parts, as the shelter which he had erected, around and over his hearthstone for his habitation and home, and as entirely under the protection of the laws, against, the intrusion as the very hearthstone itself. That these lands are the lands of the plaintiff unless he has lost them by the creation of a public road across them, is undeniable, is indeed not denied. Does the creation of a public road through the lands, divest, him of the fee in the same ?

As to the extent, of the right acquired by the public upon opening a highway in Virginia, Mr. Minor in his Institutes. (vol. 1, p. 120,) says : “ The public acquires merely a right of passage, the freehold, and all the profits of the soil', (that is trees, mines, &e.,) belong still to the proprietor from whom the right of passage was acquired, he may therefore recover the freehold in ejectment subject, to the right of way, and may maintain an action of trespass for digging the ground. If it be unknowu from which of two adjacent proprietors a'highway was at first taken, or if the highway’ be the boundary between them, they are understood to own, each ad medium filian viee." Citing Bac. Abr. Highways, (b); Bolling v. Mayor of Petersburg, &c., 3 Rand., 563; Home v. Richards, 4th Call, 441; Harris v. Elliott, 10th Pet., 25. And this subject is again referred to by Mr. Minor in his second volume, p. 20, as to the ownership of land adjacent, to highways, when he says: “ The ownership usually extends to the middle of the road, as in the case of a private stream; or, if the same party owns on both sides, the whole road belongs to him, subject to the public easement of the right of passage in either case.” Citing 3 Kent, Comm., 432. In the case of Home v. Richards, supra, all the judges delivered opinions, and all held that the grant of a right of -way does not convey the soil, but only the right to. a way over. In the case of Bolling v. Mayor of Petersburg, supra, a case fully and ably argued in this court by the foremost lawyers of that day, Judge Carr delivered the unanimous opinion of the court. Speaking as to the public highway, he. said: “ Does this disable the demandant from recovering the land? It certainty would not, in England, as mauy cases shown” Citing Lade v. Shepherd, 2 Strange, 1004. In that case the defendant rested one end of a bridge upon the highway. Upon trespass brought, the court, said: “ It is certainty a dedication to the public, so far as the public has occasion for it, which is only for a right of passage; but it. never was understood to transfer the absolute property in the soil.” In Goodtitle v. Alker, 1 Burr, 143, in ejectment, a special verdict finding that the land was a public street, and public highway, Lord Mansfield says: 1 Kollo, Abr., 392, is express, that the king has nothing hut the passage for himself and his people, but the freehold, and all the profits, belong to the owner of thej; soil. So do all the trees upon it, and mines under it. Thejowner may get his soil discharged of this servitude or ease-' ment of a way over it. by a writ of ad quod damnum. It. is like the property in a market or fair. There is no reason why he should not have a right to all remedies for the freehold, subject still, indeed, to the servitude or easement. An action of trespass would lie for an injury done to it. I see no reason why the owner may not bring ejectment as well as trespass.” 1 Wills., 107 ; 6 East, 154. But it is said that in this country we act- on a more liberal scale; that the court will look to the great principles of public policy, and give them effect; that the conveniences of the community requiring highways, they must be had; and, as a mere right- of way is not. sufficient for the full enjoyment of them, we must consider the commonwealth as vested with a base fee in all public highways.

Our business is with the law as it is; and where the power to be exercised is one of so important a character as the taking away the property of the citizen, divesting him of his eminent domain in the soil, I could not consent to take the step unless I saw myself justified by some clear principle of the common law or some plain enactment- of the statute. The English cases are pretty strong evidence that the common law confers no such power. I have looked into our statutes, and I can find nothing there to countenance the idea that where a road is established, the fee in the soil, either simple or base, is vested in the commonwealth. On the contrary, I think it is obvious that a right of way is all that the public requires, leaving the whole fee in the owner of the soil. It is for this use of the! land by the commonwealth that the owner is compensated-! There can be no question as to what the law is in this state, it is well .settled. In Warwick v. Mayo, 15 Gratt., 528, Judge Allen delivered the unanimous opinion of this court to the same effect. Speaking of a highway, he says, “ The easement comprehends no interest in the soil,” and cites Judge Swift'as saying, in Peck v. Smith, 1 Conn. R., 103 : “The right of freehold is not touched by establishing a highway, but continues in the original owner of the land in the same manner as it was before the highway was established, subject to the easement.” He says, further : “Notwithstanding the easement, the owner retains many and valuable interests. * * * He may make any use of it not in consistent with the enjoyment of the casement.” Hare & Wallace’s notes to Dovaston v. Payne, 2 Smith’s Leading Cases, 90, where the authorities are collected. After speaking of the English rule and the decisions of some of the states, he says: “ In Virginia the rule has been established by an authoritative decision upon the very point in accordance with the doctrine of the English courts,” and refers to Bolling v. Mayor of Petersburg, supra. If these principles are thus settled in Virginia, as they certainly are, they are equally as firmly imbedded in the jurisprudence of numerous other states of this country. These are collected and cited by Mr. Angel in his work on Highways, p. 396, see. 301, et seq. and notes. At page 398, sec. 303, this author says : “ The principles of the common law, in this respect, have been recognized and adopted by the American courts,” citing Perley v. Chandler, 6 Mass., 454. Under these principles, the plaintiff was entitled to maintain trespass against the defendant, when the said defendant stopped upon his land, instead of passing along, and dug up his soil, and cut down his trees, and tore down and scattered his fence, unless such taking of his property was by due process of law for public uses, upon just compensation. If .the use for which the land was taken was a private use, it could not be lawfully taken without his consent. But the use may be conceded to be a public use, and yet to take without just compensation, was unlawful; such taking, without authority of law, was a trespass—and such taking could find no justification in any act of the general assembly. (Art. 5, sec. 14, Const. of Va.) It is claimed that the act of assembly, passed February 10, 1880, (Acts 1879-80,) authorized this company to so construct its works upon the land of the plaintiff. That act should receive a reasonable construction, and he so construed, if possible, as to avoid repugnance to the constitution. And while by that act these companies are authorized to construct their lines and fixtures along the county roads, provided the ordinary use of the road was not obstructed, it is not I expressly provided that this may he done without compensa- f tion; hut the provision is so as not to obstruct, the ordinary use. The commonwealth had and has in these roads nothing) hut the irse—to pass over aud along; and the act provides that/ this use shall not be obstructed by virtue of that act. But at the conclusion of this paragraph, constituting the last words in it, are these words, “upon making just compensation therefor;” and then follow the provisions of the law, which provide for the proceedings necessary to ascertain what is just, compensation by condemnation proceedings. This was certainly the provision of the act as to lands of persons generally, and if the laud upon which the highway runs is the private property of the citizen, which it clearly is, should not this language be held to apply to such land as well as to others? Why not? The commonwealth has no more power to grant the one than the other. To grant either is to take private property, and this can only he done upon just compensation. If this is the true construction of this act, the same is in accordance with the constitution of the state; and the plaintiff ivas entitled to maintain his suit against a corporation which ueither took lawfully nor paid a just, compensation. But if the act does provide for the taking of this private property without compensation, then it. is void for repugnancy to the constitution of the state, and the plaintiff was entitled to recover, and the instruction of the court was right.

However, it is claimed by the plaintiff in error that, granting that the rights of the plaintiff are ivhat we have stated, and the commonwealth has only the right to use by going over, \|still his ease is good, because his works are only a use of the Ijeasement and constitutes no new taking—no additional servitude. We will now briefly consider this argument.

The right in the commonwealth is to use by going along-over; this is the extent of the right. If the right was granted to the defendant to go over simply to carry its messages, then the right granted was in existence before the grant, and the-right to go over is not only not disputed, but distinctly admitted. This is the servitude over the land fixed upon it by law, and the whole extent of it. If anything more is taken it is an additional servitude, and is a taking of the property within the meaning of the constitution. To take the whole subject, the land in fee, is a taking. This, however, is the meaning of the term only in a limited sense, and in the narrowest sense of the word. The constitutional provision, which declares that property shall not be taken for public use without just compensation, was intended to establish this principle beyond legislative control, and it is not necessary that property should be absolutely taken, in the sense of completely taking, to bring a case within the protection of the constitution. As was said by a learned justice of the supreme court of the United States : “ It would be a curious and unsatisfactory result if in construing a provision of constitutional law, always understood to ’ have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to- total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the law and practice of our ancestors.” Justice Miller in Pumpelly v. Green Bay Company, 13 Wall., 166.

Tt is obvious, and it is so held in many cases, that the con-, struction of a railroad upon a highway is an additional' servitude upon the land, for which the owner is entitled to additional compensation. Cooley’s Constitutional Limitations, 548; Ford v. Chicago and Northwestern R. R. Co , 14 Wis., 616; Pomeroy v. Chicago & M. R. R. Co., 10 Wis., 640. And the •power of the legislature to authorize a railroad to be constructed on a common highway is denied, upon the ground that the original appropriation permitted the taking for the purposes of a common highway and no other. The principle is the same when the land is taken for any other purpose distinct from the original purpose, and the reasoning in the two cases is applicable to each. In the case of Imlay v. Union Branch R. R. Co., 26 Conn., 255, it is said: “ When land is condemned for a special purpose, on the score of public utility, the sequestration is limited to that particular use. Land taken for a highway is not thereby converted into a common. As the property is not taken, but the use only, the right of the public is limited to the use, the specific use, for which the proprietor has been divested of a complete dominion over his owii estate. These are propositions which are no longer open to discussion.” Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn., 85; South Carolina R. R. Co. v. Steiner, 44 Ga., 546. In the case of a telephone company the chancellor, in the case of Broome v. New York New Jersey Telephone Co. (5th Central Rep., 814), held that, in order to justify a telephone company in setting up poles in the highway it must show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil, saying: “ The complainant seeks relief against an invasion of his proprietary right to his land. The defendant, a telephone company', without any leave or license from or consent by him, but, on the other hand, against his protest and remonstrance, and in disregard of his warning and express prohibition, and without condemnation or any steps to that end, set up its poles upon his land.” What has been said is sufficient of itself to establish the right of the complainants to relief: for in order to justify the defendant in setting up the poles, it is necessary for it to show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil. As to these rights of the owner of the soil see American and English Encyclopaedia of Law, vol. 9, title “Highways,” vii., sec. 2; Board of Trade Tel. Co. v. Barnett, 107 Ill., 508; Southwestern R. R. Co. v. Southern & A. Tel. Co., 46 Ga., 43; Western Union Tel. Co. v. Rich, 19 Kansas, 517; Willis v. Erie Tel. & Co., 34 N. W. Rep., 337.

IS That the erection of a telegraph line upon a highway is an I''additional servitude is clear from the authorities. That it is such is equally clear upon principle in the light of the Virginia cases cited above. If the right acquired by the commonwealth in the condemnation of a highway is only the right to pass along over the highway7 for the public, then, if the untaken parts of the land are his private property, to dig up the soil, is to dig up his soil; to cut down the trees, is to cut down his trees; to destroy the fences, is to destroy his fences; to erect any7 structure, to affix any pole or post in and upon his land, is to take possession of his land; and all these interfere with his free and unrestricted use of his property. If the commouV] wealth took this without just compensation it would be a s violation of the constitution. The commonwealth cannot constitutionally7 grant it to another.

It is true that the use of the telegraph company is a public use; that company is a public corporation, as to which the public has rights which the law will enforce. But these pub-lie rights can only be obtained by paying for them. The use, while in one sense public, it is not for the public generally ; it is for the private profit of the corporation. It is its business enterprise, engaged in for gain. Its services can only be obtained upon their being paid for. There is no reason either1’; in law or common justice why it should not pay for what itp needs in the prosecution of its business. Upon this burden being placed upon it, it can complain of no hardship; it is the common lot of all. If the said company has use for the private property of a citizen of this commonwealth, and it is of advantage to it to have the same, it is illogical to argue that the property is of small value to the plaintiff, and in the aggregate a great matter to the plaintiff in error. This argument is not worth considering; it cuts at the very root of the rights of property. It would apply with equal force to all the transactions of life. It is sufficient to say the Eegis of the constitution is over this as over all other private property rights, and there is no power which can divest it without j ust compensation.

We think the instructions of the circuit court were clearly right, and there is no error therein.

There is no error iu the process in the case. It was made as provided by law against a non-resident corporation having no officer or agent resident in the county.

There was no error in the refusal of the court to remove the case from Kew Kent county. Hot the slightest ground is shown for it. And it may be remarked that the plaintiff in error selected its forum when it thus unlawfully invaded the property rights of one of the citizens of that county.

As to the contention concerning the summoning of the jury by the sheriff, because he was interested in the suit, there is ho error in that action of the court below : (1) Because the sheriff does not appear to be in any way interested in the suit, and (2) because the sheriff did not in fact select the jury. Upon ohjection made, the judge made out the list and gave it to the deputy sheriff to summon the required venire.

Upon the whole ease, we are of opinion that there is no error in the judgment appealed from, and the same must be affirmed.