§ 322. Abutting owners - How affected by Post Roads Act. The fact that a telegraph company has accepted the provisions of the Post Roads Act of Congress does not authorize it to construct its line upon a street or highway without making compensation to abutting owners in those cases where his easements of access, light and air are materially impaired. Nor can it erect its poles and wires in those States where it is held that they constitute an additional burden on the adjacent land, without making compensation therefor.1 to-Telegraph § 323. Abutting owners Compensation over railroad right of way. A railroad company may construct a telegraph line over its right of way, either by itself or in conjunction with another company, where such line is constructed in good faith, either for the use and benefit of the railroad, in the operation thereof, and to facilitate its business or is reasonably necessary for that purpose, and such line is not an additional burden to abutting owners, entitling them to compensation. When private property is taken for railroad purposes the company does not merely acquire an easement for laying the track thereon and the running of cars over the same, but also acquires the right to construct any building or erect 1 Dailey v. State, 51 Ohio, 348, 37 N. E. 710, 5 Am. Elec. Cas. 196; Clausen & Sons' Brewing Co. v. B. & O. Teleg. Co. (N. Y. Sup. Ct., Chambers, 1884), 2 Am. Elec. Cas. 214. any structures thereon which tend to facilitate its business. While the railroad company may, however, construct a line for the foregoing purposes, yet the construction, by another company, of a telegraph line over the railroad right of way, which is not reasonably necessary for the purposes of the railroad, but the main object of which is to establish an extensive line of communication, for general commercial purposes, will create an additional servitude upon the adjoining land, entitling the owners thereof to compensation, in those cases where the railroad company has acquired merely an easement, and the fee to the soil remains in the abutting owners.3 This view is affirmed in a recent case in North Carolina, wherein it is decided that a grant by a land owner of a "right of way and easement" to a railroad company for the purpose of "surveying, building, constructing, operating, altering, improving and repairing," a branch road only confers the right to erect 2 Western Un. Teleg. Co. v. Rich, 19 Kan. 517, 1 Am. Elec. Cas. 271. "A telegraph line, if not indispensable to a railroad, tends so much to facilitate its business, and to the speedy and safe running of its trains, that the railroad company has a right to build it, to use its right of way therefor, and to remove all obstructions thereon to its fullest and most uninterrupted and beneficial use. Although it may have but an easement in the land, and that easement limited to its use for railroad purposes, yet a telegraph is so convenient, if not indispensable, that it may cut down every tree and bush on the right of way, if necessary for the most constant and efficient use of a telegraph line, built by it over and upon such right of way, just as it may dig away a hill, or fill up a ravine, for the sake of a water-tank or a station-house. By so doing it gives the adjacent landowner no claim for damages," per Brewer, J. The opinion was extensively quoted from 4 and followed in American Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 3 Am. Elec. Cas. 169, 18 Atl. 910; United States v. Western Un. Teleg Co., 50 Fed. 28. 3 American Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 3 Am. Elec. Cas. 179, 18 Atl. 910, per Miller. J.; Prather v. Western Un. Teleg Co., 89 Ind. 501; Western Un. Teleg. Co. v. Rich, 19 Kan. 517, 1 Am. Elec. Cas. 271. See, also, Chicago M. & St. P. Ry. Co. v. Snyder, 120 Iowa, 532, 95 N. W. 183, 8 Am. Elee. Cas. 284, holding in such a case that though an additional servitude is created the owner of the fee is not entitled to an ae counting of the rents and profits re ceived by the railroad company from the telegraph company. + Hodges v. Western Union Teleg Co., 133 N. C. 225, 45 S. E. 572. citing Joyce on Elec. Law, § 233. This citation is, however, evidently due to a mistake in printing and should be § 323. and use such telegraph poles and lines as are reasonably necessary for the purpose for which the easement was granted, and that the construction of a line of telegraph by another company, under a contract with the railroad company, consisting of larger poles and more wires than is reasonably necessary for the enjoyment of the franchise granted to the railroad company is an additional burden upon the land of the abutting owner. If, however, the fee is in the railroad company, there could be no recovery by the abutting owner.5 A portion of the right of way of a railroad may be condemned by a telegraph company for its right of way for its poles and wires where, by the use of the portion appropriated, the use of the way for the railroad company will not be destroyed or interfered with. § 324. Telegraph over railroad right of way - Compensation to railroad. A telegraph company which has accepted the provisions of the Post Roads Act may construct its line along a railroad right of way, but must make compensation to the railroad therefor. The fact that the uses of a railroad are of a public nature, and that the State exercises control over it for certain purposes, and that in consequence of these uses the State authorizes it to condemn private property, does not relieve the property thus acquired of its character as private property, though owned by the railroad.7 $325. Telegraph over railroad right of way - Compensation to railroad Cases. The amount of compensation to which the railroad company is entitled, where a telegraph company appropriates part of its right of way for the construction of a telegraph line, must depend upon the circumstances of each particular case. As a general rule, however, the measure of 5 Prather v. Western Un. Teleg. Co., 89 Ind. 501. & Southwestern Teleg. & Teleph. Co. v. Gulf, C. & S. F. R. Co. (Tex., 1899), 52 S. W. 106. 7 Atlantic and Pacific Teleg. Co. v. Chicago, Rock Island & Pacific R. Co., 6 Biss. (U. S.) 158, 1 Am. Elec. Cas. 111, per Drummond, J.; Southwestern R. Co. v. Southern, damages is to be determined by the extent to which the right of way of the railroad company is injured or impaired by the appropriation and use of its right of way by the telegraph company. In a recent case it is said that "the measure of compensation should be the amount which the right of way of the railroad company for railroad purposes is diminished in value. by the proposed easement of the telegraph company, or, in other words, the amount of the decrease in the value of the use of such right of way for railroad purposes which will be caused by the appropriation of an easement on the same for the purpose of erecting and maintaining a telegraph line thereon.9 And in another case it is declared that the measure of damages is the value of the land actually taken and the extent to which the value of the use of the right of way by the railway company is diminished by its use by the telegraph company.10 Where the railroad lay through an agricultural section of the country, and the use of its right of way for railroad purposes was not interfered with or impaired by the 8 Mobile & O. R. Co. v. Postal Teleg. Cable Co. (Miss., 1899), 26 So. 370; Cleveland C. C. & St. L. R. Co. v. Ohio Postal Teleg. Cable Co., 68 Ohio St. 306, 67 N. E. 890, 8 Am. Elec. Cas. 252; Gulf, C. & S. F. R. Co. v. Southwestern Teleg. & Teleph. Co. (Tex., 1899), 52 S. W. 86; Texas & N. O. R. Co. v. Postal Teleg. Cable Co. (Tex., 1899), 52 S. W. 108. 9 Cleveland C. C. & St. L. R. Co. v. Ohio Postal Teleg. Cable Co., 68 Ohio St. 306, 67 N. E. 890, 8 Am. Elec. Cas. 252, per Price, J. 10 Atlantic Coast Line R. R. Co. v. Postal Teleg. Cable Co., 120 Ga. 268, 48 S. E. 15, per Evans, J., who further says in this connection: "The telegraph company must pay for the land taken and the damage sustained by the railway company by the construction and maintenance of the telegraph line. The damage thus sustained is not the value of the land under the wires and between the poles but the extent to which the value of the use of that part of the right of way between the poles and under the wires for railroad purposes is diminished by its use by the telegraph company. The space between the poles is not occupied by the telegraph company; the railway company still has the right, notwithstanding the construction of the telegraph line, to use this interval of space. It cannot be said that the land between the poles is taken where the railway company has not been excluded from its possession, but has a right to use this particular part of its property for any lawful use just as it had, before the construction of the telegraph line, with the limitation of the burden imposed thereon for the necessary purposes of the telegraph company as designated in its notice of condemnation." appropriation of a portion for telegraph purposes, it was held that only nominal damages could be recovered.11 It has also been held that the measure of damages in such case is the value of the land actually taken by the poles, and not that lying under the wires.12 In another case it has been held that in estimating the damages, the value of the right of way to the railroad for its own use or for the purposes of sale, and any special damage in addition thereto, were the basis of arriving at the damages sustained by the railroad company.13 And again it is said that the telegraph company must make compensation proportionately for the cost and expense of the railroad company in putting in condition the right of way. It cannot avail itself of improved conditions without compensation.14 But in another case it was held that the telegraph company need not make compensation for such cost and expense, it not appearing that the railroad company had been at any expense so far as the right of way the telegraph company sought to appropriate for its line was concerned, and the telegraph company having stated in its petition that it did not intend to construct its line upon any portion of the railroad right of way which had been transformed for the purpose of the roadbed.15 And in two later cases it is held that the expense to the railroad company in clearing its right of way are not to be considered in estimating the damages for an appropriation of a right of way for a telegraph line.16 The value to a telegraph company or the peculiar advantage which it may derive from the use of the railroad right of way, are not an 11 Mobile & O. R. Co. v. Postal Teleg. Cable Co., 101 Tenn. 62, 41 L. R. A. 403, 46 S. W. 571, 10 Am. & Eng. R. Cas. (N. S.) 67, 8 Am. & Eng. Corp. Cas. (N. S.) 505. 12 St. Louis & C. R. Co. v. Postal Teleg. Co., 173 Ill. 508, 51 N. E. 382. 13 Postal Teleg. Cable Co. v. Alabama & Vicksburg Ry. Co., 68 Miss. 314, 8 So. 375. 14 Postal Teleg. Cable Co. v. Morgan's La. & Tex. R. & SS. Co., 49 La. Ann. 58, 21 So. 183, 6 Am. Elec. Cas. 185, per McEnery, J. It was also held in this case that the inconvenience occasioned the railroad company was an element to be considered in arriving at the gen eral estimate of the damages. 15 St. Louis & C. R. Co. v. Postal Teleg. Co., 173 Ill. 508, 51 N. E. 382. 16 Texas & N. O. R. Co. v. Postal Teleg. Cable Co. (Tex., 1899), 52 S. W. 108; Southwestern Teleg. & Teleph. Co. v. Gulf. C. & S. F. R. Co. (Tex.. 1899), 52 S. W. 106. |