easement on and over the right of way of the railway company. 43 § 278g. Condemnation railroad right of way-Necessity of taking need not be shown.- In a proceeding by a telegraph company to condemn the right of way of a railroad company for its telegraph line, it is not a question whether there is other land which is equally or more available, and the former company is not obligated to show that there is an actual necessity for the taking of the particular land. 44 "With the degree of necessity or the extent which the property will advance the public purpose, the courts having nothing to do.45 When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance." Where the telegraph company has not acted in bad faith and is not guilty of oppression, its discretion in the selection of land will not be interfered with.47 And the right of a telegraph company to condemn the right of way of a railroad company for its line cannot be resisted by the latter company, unless it appear that its use is necessary to the maintenance and operation of the railroad and the lines of telegraph already erected thereon, or is needed for such purpose." 46 48 § 278h. Same subject - Statute conferring right to condemn so much as may be necessary.- Under a statute conferring upon a telegraph company the right to condemn so much of the 43 Postal Teleg. Cable Co. V. Chicago, Ind. & L. R. Co., 30 Ind. App. 654, 66 N. E. 919. 44 Postal Teleg. Cable Co. v. Oregon S. L. R. Co., 23 Utah, 474, 65 Pac. 735, 739, 7 Am. Elec. Cas. 417. 45 Citing Tracy v. Railroad Co., 80 Ky. 259: In re New York Cent. & H. R. Co., 77 N. Y. 248; Railroad Co. v. Hooper, 76 Cal. 404, 18 Pac. 599. 46 Postal Teleg. Cable Co. v. Oregon S. L. R. Co., 23 Utah 474, 65 Pac. 735, 739, per Hall, J., citing Boom Co. v. Patterson, 98 U. S. 403, 406, 25 L. Ed. 206; St. Louis H. & K. C. Ry. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S. W. 483. See also St. Louis & S. F. R. Co. v. Southwestern Teleph. and Teleg. Co., 121 Fed. 276, 58 C. C. A. 198. 47 Postal Teleg. Cable Co. v. Oregon S. L. R. Co., 23 Utah, 474, 65 Pac. 735, 739. 48 Union Pac. R. Co. v. Colorado Postal Teleg. Cable Co., 30 Colo. 133, 69 Pac. 564, wherein it is said: "That property held for a public use may be taken under the exercise of the right of eminent domain for the same or a different right of way of a railroad company as may be necessary for the purpose of erecting, maintaining and operating its telegraph lines along and upon such right of way, the telegraph company is vested with a certain discretion in the matter. The obligation does not rest upon it to show affirmatively that there is an absolute necessity that it should take the particular portion of land described in its notice. The object of such a statute is to confer upon the company the right to construct its line upon a railroad right of way without going elsewhere to seek a location, it being declared that such a statute impliedly declares that such construction is necessary for the public good. The company may, therefore, condemn a portion of a railroad right of way without showing a necessity therefor, subject to the limitation, that it does not essentially interfere with or injure the public use to which the property is already devoted. 49 public use, when such taking does not materially interfere with the uses for which it is already held, has been recognized in a great number of cases, in which this subject has been considered," per Gabbert, J. 49 Savannah F. & W. Ry. Co. v. Postal Tel. Cable Co., 112 Ga. 941, 38 S. E. 353. It was said by the court in this case: "It is contended by counsel for plaintiff in error that it was incumbent upon the telegraph company to show that it was necessary for it to condemn the particular portion thereof which it specified in the notice served upon the railway company. We cannot agree with this contention of counsel when the general assembly passed the act authorizing and empowering a telegraph company to condemn so much of the right of way of a railroad company as might be necessary for the purpose of erecting, maintaining and operating its telegraph lines through and upon such right of way, and gave to the telegraph company the right, in one proceeding, instituted in a single county, to condemn the right of way in any number of counties through which the same might extend, it passed upon the necessity of condemning such a right of way for such purpose. When it, in effect, enacted that a telegraph com pany could, in one proceeding, condemn a strip of land extending through the entire length of a railroad right of way, it impliedly declared that it was necessary, for the public good, that a telegraph company should not be compelled to seek a route for the erection of its telegraph line other than through and upon the right of way of a railroad company. When the right to condemn the right of way of the railway company was conferred upon the telegraph company, the power to select such portion and so much of the right of way as might be necessary for erecting, maintaining, and operating its telegraph lines was con § 278i. Same subject Where statute provides that necessity for use taken must be shown.- In another case in which this question arose, it was provided by statute that before property can be taken for a public use it must be shown, (1) that the taking was necessary to such use; (2) if already appropriated to some public use, that the public use to which it is so applied "is "is a more necessary public use." The court declared, in construing such statute, that: "Considering the words used, and the general tenor of the law controlling the devotion of private property to public use, we think the statute was intended to provide that property already devoted to a public use might, whenever deemed necessary for the use of a corporation having the authority to exercise the right of eminent domain, be devoted to a second use, which would not interfere with the first. It was not intended to require that absolute necessity should exist for the devotion of the property to the second use. It was only required that the second use be more necessary than the first use. A corporation in instituting condemnation proceedings, has the general right to select such property as it shall find necessary for its public use. This right is recognized by the courts. No one can defend against such an appropriation by showing that some other property would serve the use of the corporation equally well. Such property is necessary' when the corporation asserts that it has placed its line over it and needs it. Property already dedicated to a public use stands upon the same footing as other property, and is subject to condemnation as is other property, provided that the second use shall not interfere with the first." 50 ferred upon it, subject to the limitation that it could not select and condemn such a portion of the right of way as would essentially injure or interfere with the public use to which the property was already devoted. It was not obliged to show there was an absolute necessity for it to take the particular strip of land described in its notice. All that was required of it was that it should, in the selection of the particular portion of the * * right of way which it proposed to condemn, comply with the requirements of the statute, and select such a portion as would not unreasonably and materially injure or interfere with the use of the right of way for railroad purposes," per Fish, J. 50 Oregon Short Line R. Co. v. Postal Teleg. Cable Co., 111 Fed. 843, 847, 49 C. C. A. 663, construing Rev. Stats. of Idaho, § 5213, per Gilbert, J. § 278j. Same subject - Where highway near-Want of municipal consent. The right of a telegraph company to condemn land for its line along the right of way of a railroad company cannot be affected by the fact that there may be a highway adjacent to the route upon which the telegraph company proposes to erect its line, or by the fact that consent to erect its line through certain incorporated towns through which its right of way extends had not been secured from the munici pal authorities of such towns.51 § 278k. Where telegraph company limited in exercise of power to designated counties or State. Where a corporation is established under the laws of another State for the purpose of constructing and maintaining telegraph and telephone lines 51 Union Pac. R. C. v. Colorado Postal Teleg. Cable Co., 30 Colo. 133, 69 Pac. 564. The court said in this case: 66 The legislature has vested corporations of the character of petitioner with discretion in locating their telegraph lines. Ordinarily, the courts cannot exercise supervision with respect to such matters. The discretion which the 'corporation may exercise in determining the route of its lines cannot be interfered with in the absence of a showing of bad faith, a malicious motive, or that the taking of a particular tract sought to be condemned would entail a great loss which might readily be avoided. There was no showing of this character on the part of the respondent. True, it did introduce evidence to the effect that the erection of a telegraph line along its right of way would cause some inconvenience, and might possibly increase the hazard of railroading, but in no greater degree in this particular instance than other railroads must suffer from the erection of the telegraph lines adjacent to their railroad * tracks a condition which exists almost without exception along every line of railroad in the United States. On behalf of respondent it is contended that, in the absence of leave from the municipal authorities of the towns situated along the proposed right of way to erect and maintain its line through such towns, and through which the lands sought to be condemned extend, petitioner could not take such lands because the proceedings must be regarded as an entirety. This question does not concern respondent. If petitioner cannot erect its line of telegraph through the towns in question, except it obtain leave to do so from the corporate authorities, and fails to obtain such leave, respondent is not injured. Petitioner cannot use the right of way stituted within the corporate limits of towns except for the purposes for which it is taken. If it never utilizes the right of way within such limits, respondent cannot complain. Petitioner might be able to build its line around such towns, but that certainly can make no difference to respondent," per Gabbert, J. in certain named counties in that State, such corporation is without authority to extend its operations beyond the limits of the counties designated, since the enumeration of the counties to operate within which it is created excludes all other places. It is also a condition precedent to the right of a corporation created in one State to operate in another that it shall be so authorized or at least not prohibited by the law of its creation. And a State statute conferring upon corporations chartered or formed under the laws of another State or of the United States for the purpose of transmitting intelligence by magnetic telegraph or telephone, the right to establish lines in the State enacting the statute, and for that purpose to expropriate property, does not apply to a corporation whose powers are restricted as above by the State in which it is incorporated.52 § 2781. Where right conferred by Constitution subject to regulation by legislature.— The fact that the Constitution of a State provides that telegraph companies shall have the right to construct and maintain lines of telegraph within the State and requires the legislature of the State to provide by general laws the necessary regulations to carry such provision into effect, does not authorize proceedings in behalf of a telegraph company to condemn land for its telegraph line, where no provisions or regulations have been made by the legislature as directed.5 53 54 § 278m. Right of foreign corporation to exercise power of eminent domain. The fact that a corporation has been organized under the laws of a State and given the right to exercise the power of eminent domain does not of itself confer any right to exercise such power in another State or Territory.5 But the right to exercise the power of eminent domain conferred by statute upon corporations created for the purpose of constructing and maintaining magnetic telegraph lines is not limited to those corporations which are incorporated within the State, and such right may in some cases be exercised 52 Southwestern Teleph. Co. V. Kansas City, Shreveport & Gulf Ry. Co., 108 La. 691, 32 So. 958. 53 Postal Teleg. Cable Co. v. Mo bile & O. R. Co., 21 Ky. Law Rep. 1188, 54 S. W. 727. 54 St. Louis & S. F. R. Co. v. Southwestern Teleph. & Teleg. Co., 121 Feb. 276, 58 C. C. A. 198. |