Arkansas State Highway Commission v. Southwestern Bell Telephone Co. , 206 Ark. 1099 ( 1944 )

The parties to this litigation are the State Highway Commission, which was created by 6478, Pope's Digest, and which is vested with all the powers and duties necessary, or proper, to enable it to carry out and execute the laws of the state relating to the state highways; and appellee, a corporation authorized to conduct a telephone business in this state, and clothed with the privileges conferred by 4991, Pope's Digest.

The decree from which is this appeal was rendered upon the pleadings, which disclosed the following facts. The Highway Commission has the control and management of the bridge across the Arkansas River between the cities of Fort Smith and Van Buren, and the highway leading thereto. A flood in 1943 destroyed a portion of this highway leading to the bridge, and in order to provide for the vehicular and foot traffic on the highway the Commission is engaged in building a viaduct, or bridge structure, leading to the bridge across the river, which structure is designed to take the place of the portion of the highway washed away by the flood.

Appellee desires to have certain attachments placed in and on the new structure for the purpose of carrying its wires and other appurtenances necessary in its business. It insists that it has this right without paying the rental charge which the Commission demands, or any sum for such use.

The complaint of the telephone company and the answer of the Highway Commission present the question whether rents may be charged and payment thereof required. Having first answered, the Highway Commission thereafter filed a demurrer, which was overruled, and the Commission electing to stand on its demurrer, has appealed from the decree of the court, which, after overruling the demurrer, enjoined the Commission from interfering with the telephone company in placing its telephone lines on and over the bridge.

The decision of the question here presented, that is, the right of the Commission to demand and collect rents for the use of the bridge, depends upon the construction and effect to be given to 4991, Pope's Digest, which reads as follows:

"Any person or corporation organized by virtue of the laws of this state, or of any other state of the United States, or by virtue of the laws of the United States, for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence, the equivalent thereof, which may be hereafter invented or discovered, may construct, operate and maintain such telegraph, telephone or other lines necessary for the speedy transmission of intelligence along and over the public highways and streets of the cities and towns of this state, or across and under the waters and over any lands or public works belonging to this state, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads or turnpikes of this state, and on and over the bridges, trestles or structures of said railroads; provided, the ordinary use of such public highways, streets, works, railroads, bridges, trestles or structures and turnpikes be not thereby obstructed, or the navigation of said waters impeded, and that just damages shall be paid to the owners of such lands, railroads and turnpikes, by reason of the occupation of said lands, railroad and turnpikes by said telegraph or telephone corporations. Act March 31, 1885, 1, p. 176."

It may first be said that it was not alleged, and is not contended, that the telephone company will in any manner obstruct the use of the bridge for its intended purposes. This could not be permitted or authorized, even though the rental demanded was paid.

The section quoted is the first section of act CVII of the Acts of 1885, p. 176, which is entitled, "An act granting certain privileges to and prescribing certain duties of telegraph and telephone companies, and for other purposes," and has never been amended since its passage. Under its provisions thousands of miles of telegraph and telephone lines have been erected along the highways of the state, without that right having been questioned or compensation for its exercise demanded, so far as the decisions of this court reflect.

The act was passed when the telephone and telegraph were in their infancy, and the act was intended, as it recites, to aid "the speedy transmission of intelligence along and over the public highways and streets of the cities and towns of this state, or across and under the waters and over any lands or public works belonging to this state, . . ." Now, this grant is made without any provision, or requirement imposed, that compensation shall be exacted, this, no doubt, for the reason that the speedy transmission of intelligence, thus to be provided, was, of itself, sufficient compensation. Having granted this right, which the title of the act designates a privilege, without requiring compensation for its exercise, the act proceeds to grant the right of eminent domain to construct telegraph and telephone lines "on and over the lands of private individuals, and upon, along, and parallel to any of the railroads or turnpikes of this state, and on and over the bridges, trestles or structures of said railroads," provided the ordinary use of such streets, railroads, etc., be not thereby obstructed. But the right of eminent domain as to property privately owned, may be exercised only by the payment of damages resulting from its exercise. In other words, no provision is made for payment for the use of highways, whereas that requirement is made as to the property owned privately, whether by an individual or a corporation.

Now, the act requires payment of damages to turnpikes, and while turnpikes are public highways, they are not highways of the state within the meaning of the act. We know historically that public roads were, in the early development of the state, improved by grants of franchises from the county courts to improve portions of the public highways, and that these franchises authorized the imposition and collection of tolls for the use of the turnpikes. Darnell v. State, 48 Ark. 321,3 S.W. 365; Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264, 63 S.W. 70.

As to the highways, a grant was made without charge or condition, except that the highways should not be obstructed. The General Assembly had the power to confer this right, and no other agency had, and the right was conferred without requirement of compensation for its exercise. Now, as to turnpikes and other property privately owned, the right of eminent domain was conferred, but its exercise was conditioned upon payment of damages resulting therefrom.

It will be noted that 2 and 3 of act CVII of 1885, supra, which appear as 4992 and 4993, Pope's Digest, state the procedure for condemning rights-of-way owned privately, but make no mention of compensation to be paid the state, and we will be required to read something into the statutes which the General Assembly did not insert, if we hold that compensation must be paid to the state, as in the case of privately owned property.

The Commission contends that to so construe this legislation as to exempt telegraph and telephone companies from paying damages for crossing or using state owned highways would offend against 9 of art. 12 of the Constitution, which reads as follows:

"No property, nor right-of-way, shall be appropriated to the use of any corporation until full compensation therefor shall first be made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law."

It is insisted that these provisions of the Constitution inhibit the grant of any use of the state's property except upon compensation paid by the way of damages for the taking and use, and that there is no distinction in this respect between public and private property.

The courts of Missouri have had occasion to consider this question. State, ex inf., McKittrick, v. S.W. Bell Tel. Co., 92 S.W.2d 612, 338 Mo. 617; State v. Kansas City Pow. L. Co., 105 S.W.2d 1085, 232 Mo. App. 308; State, ex rel., State Highway Comm., v. Union Electric Co., 142 S.W.2d 1099. All of these cases recognize the power of the General Assembly of the state to grant the free use of the state highways to utilities such as a telephone company.

In the first of these cases it was held by the Supreme Court in banc that: "Statute permitting telephone company to construct telephone lines along, across, or under public highways held not violative of constitutional prohibition against grant of thing of value to corporation, in view of benefit to general public." In so holding the Supreme Court of Missouri quoted from the opinion of the Supreme Court of the United States in the case of State of Georgia v. Trustees of Cincinnati So. Ry.,248 U.S. 26, 39 S. Ct. 14, 63 L. Ed. 104, the following declaration of law: "A conveyance in aid of a public purpose from which great benefits are expected is not within the class of evils that the Constitution intended to prevent and in our opinion is not within the meaning of the word (gratuity) as it naturally would be understood."

In the last of these cases, in an opinion by the St. Louis Court of Appeals, it was held, to quote the fourth headnote, that, "The right of a public utility to place its electric transmission lines upon public highways and bridges is based on theory that public benefit to be derived from promotion of services rendered by public utilities warrants grant of privilege of placing their lines upon the highways, and thereby serves to take such grants outside class of grants prohibited by Constitution," and it was further held that: "Whether State Highway Commission should have the power to exact rental from a utility for the use of a bridge upon which electrical transmission lines are laid is for the Legislature and not for the courts."

Counsel for the Commission concedes that these cases are against his contention, but insists that they are not authority here, and should not be followed for the reason that the applicable provisions of the Constitution of Missouri are unlike those of our own. We do not agree. The Missouri Constitution provides, 46, art. 4, that: "The General Assembly shall have no power to make any grant, or to authorize the making of any grant of public money or thing of value to any individual, association of individuals, municipal or other corporation whatsoever; provided, that this shall not be so construed as to prevent the grant of aid in a case of public calamity."

It will be observed that the Missouri Constitution, specifically mentions "public money or thing of value," while our own Constitution says only "no property." But conceding that "no property" refers to public as well as to private property, yet it is not more restrictive than the Constitution of Missouri on this subject.

We find it unnecessary, however, to go beyond our own cases for the proper construction of this statute, as our own cases are decisive of it. St. Louis, I. M. S. Ry. Co. v. Batesville Winerva Tel. Co., 80 Ark. 499,97 S.W. 660; Ahrent v: Sprague, 139 Ark. 416, 214 S.W. 68; S.W. Bell Tel. Co. v. Biddle, 186 Ark. 294, 54 S.W.2d 57.

In the first of these cases it was said: "A telephone line is a public utility (Joyce on Electric Lines, 275); and its public importance is recognized by clothing it with the power of eminent domain, and giving it the free use of the state's highways. Kirby's Digest, 2934-2936, 2937, et seq." The other two cases are to the same effect.

Counsel for the Commission cites cases from other jurisdictions to the effect that the construction of telegraph and telephone lines along public highways constitutes an additional servitude upon the fee title of the abutting owner, that, in other words, a public highway occupies mere easement across privately owned land, and that the owner of the fee title is entitled to damages for the additional burden put upon that easement by the construction of utility lines. That holding accords with the majority opinion in the case of S.W. Bell Tel. Co. v. Biddle, 186 Ark. 294, 54 S.W.2d 57, 687. But even so, that case was a suit by an individual owner, and not a suit on behalf of the state.

No contention is made that a bridge is not a part of the highway. We have held that a bridge is a part of the highway. White River Bridge Co. v. Hurd, 159 Ark. 652,252 S.W. 917; Lightle v. Blackwood, 176 Ark. 674, 3 S.W.2d 991. Indeed, as counsel for appellee says, a bridge is a highway on stilts.

We conclude that the court properly overruled the demurrer to appellant's complaint, and the decree is, therefore, affirmed.