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ance, to property owners who are parties to such proceedings, of taxable costs as in ordinary proceedings or for disbursements for the compensation of expert witnesses.2

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§ 291d. Where land sold after commencement of condemnation proceedings.- Where proceedings have been brought to condemn land for the purpose of a traction railway and the court has acquired complete jurisdiction over the subject matter, such proceedings cannot be defeated by a subsequent conveyance to another. Thus in a case in New Jersey it was decided that, when the petition and affidavit were filed with the justice pursuant to statute and notice duly given to the owner and occupant of the premises, as directed in the order assigning a day for the hearing, a subsequent conveyance could not defeat the proceeding, the court declaring that such a rule was in accord with the adjudications.2

22

§ 291e. Right to writ of error.- In Illinois it has been decided that where no right to a writ of error is given by the eminent domain act or special statute having reference to condemnation proceedings, such right does not exist, it being declared that a writ of error exists in all cases which are prosecuted according to the course of the common law but that it is not a writ of right in a special statutory proceeding, and that the condemnation of private property under the Eminent Domain Act is a special, statutory and summary proceeding which is not governed either as to pleading or practice by the rules of the common law.23

§ 291f. Power of court as to report of commissioners in condemnation proceedings. In a recent case in New York the question arose as to the power of the court to send the report of commissioners in condemnation proceedings back to them with a requirement that they state in a further report the

21 Matter of Low, 103 App. Div. (N. Y.) 530, 93 N. Y. Supp. 262.

22 Houston v. Paterson State Line T. Co., 69 N. J. L. 168, 54 Atl. 403, construing Act of March 14, 1893, and acts supplemental thereto (P. L., p. 302: 3 Gen. St., p. 3235), and

citing Plumer V. Wausau Boom Co., 49 Wis. 449, 5 N. W. 232; Trogden v. Winona & S. P. R. Co., 22 Minn. 198.

23 Sweeney v. Chicago Telephone Company, 212 Ill. 475, 72 N. E. 677.

grounds upon which their decision was based, and it was declared that, though the practice appeared to have been followed in some cases, it was not to be commended, and had not been usual since the enactment of the condemnation law of 1890.24 And it was further said in this case that under the provisions of this law if there was any irregularity or error of law in the proceedings before the commissioners, or if the court deemed the award insufficient the proper remedy was to set aside the report and not to send it back.25

§ 291g. Injunction to restrain unauthorized exercise of power of eminent domain.- Where a telegraph company attempts, without authority, to exercise the right of eminent domain to condemn a part of a railroad right of way it has been decided that a suit in equity for an injunction is the proper remedy to restrain the unauthorized exercise of such power.

26

§ 292. Condemnation - Nature of title acquired.- Does a telegraph company acquire the fee to the land by condemnation proceedings, or does it acquire merely the license to enter upon the land for necessary purposes in connection with the construction, operation and repair of its line? So far as we can find, this question has only been before the courts for adjudication in one instance. This was an Illinois case,27 and the court in this case held that it did not acquire the fee to the land and could enjoy or use it for no other purpose than for the erection of its poles, and the stringing of the wires thereon, and for the purpose of maintaining and repairing the same, and consequently the right at all times to enter thereon, doing as little damage as possible, when necessary to construct or repair the line. repair the line. The company, however, does acquire exclusive right and occupancy in the ground occupied by the poles, and this is all that it acquires, which is of an exclusive character in connection with the land condemned. And in such a case it does not become necessary for

24 Laws 1890, c. 95, adding to the Code of Civil Procedure, c. 23, tit. 1 thereof, §§ 3357-3384 inclusive.

25 Waterford Electric Light, H. & P. Co. v. Reed, 103 App. Div. (N. Y.) 103, 92 N. Y. Supp. 960.

26 St. Louis & S. F. R. Co. v. Southwestern Teleph. & Teleg. Co., 121 Fed. 276, 58 C. C. A. 198.

27 Lockie y. Mutual Un. Teleg Co., 103 III. 401, 1 Am. Elec. Cas 425.

a telegraph company to separate by a fence the strip condemned from the remainder of the land.28

§ 293. Condemnation Post Roads Act-Private Property. -Though a telegraph company may organize under and accept the provisions of the Post Roads Act, yet this will not authorize it or give it the right to enter upon private property, and erect the necessary structues for its business, without first obtaining the consent of the owner or acquiring the right by condemnation proceedings.29

$294. Exclusive contract-Right of way.-A railroad company cannot grant a telegraph company an exclusive right of way for its line, over the railroad right of way, since such a contract, if upheld, would deprive the State of its right of eminent domain. A railroad company may undoubtedly make a contract, giving to a telegraph company or telephone company the right to maintain a line of wire upon the railroad right of way, but it cannot make a valid contract, excluding all other lines therefrom. The exercise of the right of eminent domain, which is granted to railroad companies, is for the benefit of the general public. To permit them to make a contract of this nature was never intended, and it would be allowing them to add an unlimited franchise to one which is in itself limited. 30

28 Lockie v. Mutual Un. Teleg. Co., 103 Ill. 401, 1 Am. Elec. Cas. 425.

29 American Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 18 Atl. 910, 3 Am. Elec. Cas. 169.

30 Western Un. Teleg. Co. V. American Un. Teleg. Co., 65 Ga.

160, 1 Am. Elec. Cas. 306, per Crawford, J. See chapter XIII, herein, Exclusive Franchises. See also New Orleans, Mobile & Tex. R. Co. v. Southern & Atlantic Teleg. Co., 53 Ala. 211, 1 Am. Elec. Cas. 190.

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COMPENSATION.

§ 305. Telegraph and telephoneAdditional burden Other authorities.

306. Telegraph and telephoneWhether additional burDoubtful authori

den ties.

307. Telegraph and telephoneNot additional burden

Indiana

Kansas Kentucky Louisiana.

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308. Telegraph and telephoneNot additional burdenMassachusetts.

309. Telegraph and telephone → Not additional burdenMichigan.

310. Telegraph and telephoneNot additional burdenMinnesota.

311. Telegraph and telephoneNot additional burdenMissouri.

312. Telegraph and telephoneNot additional burdenMontana.

312a. Telegraph and telephone --Not additional burdenSouth Dakota.

313. Telegraph and telephoneNot additional burdenPennsylvania.

313a. Telegraph and telephoneNot additional burden

West Virginia.

314. Telegraph and telephoneEasements of abutting

owner obstructed - Rule.

$315. Telegraph and telephoneFee to streets in municipality - Rule.

316. Telegraph and telephone – Fee to streets in abutting owner Summary decisions.

317. Nature of easement acquired in streets.

318. Legitimate street uses.

§ 319. Use of streets for communication of intelligence.

320. Use of highways by commercial railroads.

321. Telegraph and telephone Whether additional bur

den-Conclusion.

321a. Placing of telephone wires in conduit Whether additional burden.

§ 295. Compensation- Generally.

In connection with the

exercise of the right of eminent domain, one of the requirements is that just compensation shall be made for all property taken or rights injured or destroyed.1 Just compensation means that the property taken shall be paid for at a fair valuation. And where a telegraph company was, under an act of the legislature, authorized to construct its line upon the right of way of railroad companies, but the act failed to make any provision for enforcing the award for damages, which it had provided might be assessed by arbitration, it was held to be unconstitutional. But the unconstitutionality of such an act cannot be raised, except by one whose property is damaged or affected thereby. In case of a street railway it is held that failure to provide for the payment of damages does not render the act invalid or inoperative, since the use of the streets for this purpose does not impose any additional burden, and consequently no question as to damages can arise.5 The streets of a city are for the use of the public, and they may be used for any necessary public purpose. The abutting owner is entitled to the unobstructed enjoyment of his property, and has

1 Southwestern R. Co. v. Southern & Atlantic Teleg. Co., 46 Ga. 43, 1 Am. Elec. Cas. 34, 12 Am. Rep. 585, Lewis on Eminent Domain, §

10.

2 Southwestern R. Co. v. Southern & Atlantic Teleg. Co., 46 Ga. 43, 1 Am. Elec. Cas. 34, 12 Am. Rep. 585.

3 Southwestern R. Co. v. South

ern & Atlantic Teleg. Co., 46 Ga. 43, 1 Am. Elec. Cas. 34, 12 Am. Rep. 585. See section herein, Statute as to Compensation.

4 Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610.

5 Commonwealth ex rel. Dist. Atty. v. Westchester, 9 Penn. Co. Ct. R. 542, 3 Am. Elec. Cas. 326, 330.

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