New Orleans, Mobile & Texas R. R. v. Southern & Atlantic Telegraph Co. , 53 Ala. 211 ( 1875 )

MANNING, J.

Lines of communication for the transmission of messages by the electric telegraph, between distant places, may constitute a work of “public use,” according to the law relating to the right of eminent domain.

By a statute of this State, approved April 4, 1873, (Acts of 1872-3, No. 86,) “any telegraph company chartered or incorporated by this or any other State, shall have the right to construct, maintain and operate lines of telegraph along any of the railroads, or other public highways in the State of Alabama” — but so “as not to obstruct or hinder the usual travel on such railroad or other highway.” Section 2 provides that contracts may be made for a right of way, &c., therefor, with “the owner of any lands, or of any franchise, or easement therein, over which such telegraph line is proposed to be erected.” And section 3 enacts “That such telegraph company shall be entitled to the right of way over the lands, franchises and easements of other persons and corporations, and the right to erect poles and establish offices, upon making just compensation as now provided by law.”

According to an “act to prescribe the mode of taking private property for railroads, or other purposes, or for public use,” approved March 1, 1871, as amended April 4, 1873, (Acts of 1872-3, No. 27), “Whenever any person or corporation of this State, or any telegraph company of another State, and proposing under the laws of this State to extend its lines into or through the same, shall be entitled to acquire, or take any land, or any interest therein, or to have a way, privilege, easement, or right of use, over or upon it — such land,or a franchise or easement therein, belonging to another person, or corporation, * * * application therefor may be made to the probate court, particularly describing the parcel or parcels of land, or franchise or easement, over which the way, privilege, easement, or right of use is claimed; which petition must be filed in the probate court of the countv in which the lands are situated, or of some county into or through which the right of franchise or easement in such lands extends, if the claim be over or upon a franchise or easement; and the petition must set forth all the use, easement, privilege or other right claimed therein.”

Section 2 of the original act (of March 1, 1871), enacts that thereupon the probate court “shall have and take jurisdiction of the subject matter” of the petition; and that the proceeding shall be in rem, and conform as nearly as may be, except as therein otherwise provided, to the proceedings in rem, in the admiralty courts. And section 3 provides that upon a monition or notice as prescribed, being posted according to directions, “the authority of the court shall be complete to proceed in the cause.” Any person having an interest in the premises may intervene and become a party ; and it is directed that in certain circumstances, notice of the proceeding be served on persons concerned as property owners, and an assessment is to be made of the damages and compensation to be paid by the petitioner for the use or privilege which he applies for; which assessment must be made by a jury of twelve men in court. The court is required to speed the cause, (§ 11) and the statute must be liberally construed as a remedial act, (§ 16). And the records of such causes must be in books kept therefor, (§ 12).

Appellee was the petitioner below. The application was for the privilege of erecting and maintaining telegraph poles and wires, and operating a telegraph line along the route of appellant’s railroad in Mobile county, over the right of way thereof, describing it, and along its bridges — but so as not to obstruct or hinder the usual travel on the railroad. The petition set forth also a compliance by petitioner with the provisions of the act of Congress of July 24, 1866, in respect to telegraph companies. A copy of the petition was served on the agent at Mobile of the company, and a monition or notice was posted up, according to the directions of the statute. Appellant appeared and filed an answer to the petition and exceptions in the nature of a demurrer thereto. And after argument of questions of law, which were decided against appellant, and moving that the cause be continued, which was refused by the court, and taking exceptions to the rulings of the court, appellant’s counsel withdrew from the cause at the time when it was submitted to the jury. Evidence on the part of appellee was introduced, which, among other things, explained how the telegraph line was to be constructed and used, and the effect thereof upon appellant’s right of way or other easement or estate in the land. The jury by their verdict found that appellant would not sustain any damage b)'' the construction and maintenance of the telegraph line as proposed; and the court “adjudged and decreed that the petitioner have and possess the uses and easements in the property described in said petition, as therein prayed for,” and that petitioner pay the costs of the proceeding.

There was no error for which this court would reverse the decree, in the refusal of the court below to grant a continuance of the cause.

The refusal of the probate court to require petitioner to make the Western Union Telegraph Company a party defendant, is not an error of which this appellant can be heard to complain. That company — if concerned in the cause— might itself have intervened on its own account. Besides, admitting the existence of the lines of the Western Union Telegraph Company, and a contract between it and the New Orleans, Mobile and Texas R. R. Co., as set forth in appellant’s answer, it does not appear that the Western Union Company had any interest in this proceeding to intervene for. The petition does not disclose any intention or claim of right to interfere with the poles, lines or right of way of the Western Union Telegraph Company. Whether the supposed contract between it and the railroad company was valid or not, the probate court had no jurisdiction to determine; nor was it material that it should do so. For, the railroad company itself never had the exclusive privilege of telegraphic communication along its right of way ; and if it had it could not by its contract with another corporation, preclude the State in the exercise of its right of eminent domain, from authorizing the establishment of petitioner’s line also, along the route of its railroad. Cooley on Const. Lim. 525-527, and cases there referred to.

It is not a valid objection to the decree of condemnation in this cause, that the petition does not show that there were owners in fee — apart from appellant — of the lands over which appellant had a right of way for its railroad — and who such other owners were. The act under which these proceedings were had, as amended by No. 27 of the acts of 1872-3", seems to contemplate that action to subject a franchise or easement, to such a privilege or use, as that claimed in this cause, may be taken separately against the owner of such franchise or easement alone. Whether we ought, however, to give such an effect to this statute, we need not now determine. The objection is one which, for defect of interest, appellant has no right to insist upon. And if there be any such owners in fee, whether the United States or private persons, appellee may have already obtained from them, the privilege it sought to obtain by this action against appellant.

It would have been more in harmony with the practice in suits at law, if, when no damage was proved, the jury had been instructed in this cause, to render their verdict for a small' specified sum as nominal damages. This practice was adopted in common law courts for conformity with the rule, which became established after the statute of Gloucester (C. Edw. I.) that the party who failed in an action at law should be mulcted in costs. There are many cases in which a party may be entitled to a judgment, although no damage be proved. For instance, where the act done is of such a character that its repetition or continuance may become the foundation of an adverse right,- the law in the absence of any special injury, gives nominal damages, a suit being necessary to preserve title. Burden v. Stein, 24 Ala., p. 148, and cases cited. Nominal damages are allowed in such cases to entitle the party to costs. But since the statute in this case provides that the petitioner must pay the costs, and it was required to pay them, there is no sensible reason for setting aside a decree and verdict which did not allow merely nominal damages, when no damage was, in fact, sustained. A like verdict and corresponding decree thereon, in a similar case, have been held valid in this court before. Burden v. Stein, 25 Ala. 455.

The chief contestation, however, in this cause, is founded upon a supposed want of jurisdiction in the court below in cases such as this. It is insisted that under the constitution, power to adjudicate such a controversy cannot be conferred on a probate court.

The constitutional clause referred to, is as follows : “The General Assembly shall have power to establish in each county within the State, a court of probate with general jurisdiction, for the granting of letters testamentary and of administration and for orphans’ business; and the General Assembly may confer on the said courts jurisdiction of contracts for labor, and order frequent sessions for that purpose.” The corresponding sections in the former constitutions of the State, did not contain the words: “with general jurisdiction,” or the concluding clause. In other respects they were exactly the same, and read as follows: “The General Assembly shall have power to establish in each county within this State a court of probate, for the granting of letters testamentary and of administration and for orphans’ business.”

On the 14th of December, 1819, a few days after the constitution of that year, containing the section last above quoted, became the law of the land, a statute of that date created tribunals, called “County Courts,” in which was vested the authority for “granting letters testamentary and of administration, and for orphans’ business.” But, instead of limiting their authority to these subjects, it was 'further enacted, That the said county courts shall, in addition to the jurisdiction heretofore given to the county court and orphans’ court in the territorial government, have concurrent jurisdiction in all actions of debt and assumpsit, with the circuit courts, under the limitations prescribed in this act.” Laws of Alabama, 189. Other additions were from time to time made to their authority, and, what is very much to the point, it was enacted in 1835, that “all writs of ad quod damnum, shall be heard and tried by the judge of the county court at the regular term of the orphans’ court,” &c., &c. Clay’s Dig. 378, § 13.

_ After the statute which provided for the election of these officials, with the title of judges of probate, and which designated their courts as “courts of probate,” the latter were invested with jurisdiction, among other things, of—

“The binding out of apprentices, and all controversies between master and apprentice :

“The allotment of dower in lands in the cases provided by law:

“The partition of lands within the counties :

“The change of name of any person,” &o., &o. (Rev. Code, p. 239).

In fact, the judge of probate is the only important judicial officer having a court of record of whom each county in the State has one. He is always in his county, and is endowed by the constitution with power to perform judicial functions. And upon him alone can such matters of a judicial nature as require to be promptly disposed of, be devolved with the certainty that they are to be acted on by an officer who is constitutionally competent and locally accessible. Much business, therefore, and that of great variety, has always been imposed on the judges of probate and probate courts.

All this was well known to the intelligent members of the Constitutional Convention of 1867. And no reason has been assigned why it should desire to overturn a legislative policy, which had existed, without any complaint against it, from the first organization of the State as a State to the time when this convention assembled. We cannot, therefore, suppose — because the convention of 1867 expressly provided that the General Assembly might confer on the probate courts “jurisdiction of contracts for labor, and order frequent sessions for that purpose” — that it thereby intended to inhibit the General Assembly from granting • to them any jurisdiction of the numerous other subjects, which previously had been, or thereafter might be committed, almost necessarily, to these convenient county judicatories. It is more respectful to that body to suppose, what was doubtless true in fact, that it took so much interest in “contracts for labor,” on behalf of the recently emancipated slaves, as, without impairing the power of the Legislature, to recommend to it, by the clause under consideration, provision for what the convention probably supposed would be a prompt and cheap administration of the laws relating to such contracts. And we hold that the sovereign power belonging to the General Assembly, as the Legislature of the State, is not by such mere inference to be restrained from a field of operation, in which it could apparently do no harm, while the judicioub exercise of it in some instances would quite certainly be beneficial.

Indeed, not only does the constitution of 1867-8, in our opinion, permit the Legislature to confer the jurisdiction in question, upon the probate courts, but it makes it almost necessary that it should do so. For, by section 5 of article xiii, it requires that the compensation for a right of way, “shall be ascertained by a jury of twelve men, in a court of record, as may be prescribed by law.” And no other court of record existing in each county in this State, can have, within the short terms allowed to them for the performance of their duties, time enough to carry to a conclusion the numerous cases that may occasionally arise, for the condemnation of property to the use of a railroad or other corporation; especially if it should become as often it would become, advisable that the jury be taken to the premises to view them.

The objections made on behalf of appellant, to the proceedings in the probate court, are not well founded. And this court does not usually consider any other questions than those passed upon by the court below, and presented by counsel for our determination.

The decree of the probate court is affirmed.