St. Louis, Iron Mountain & Southern Railway Co. v. Batesville & Winerva Telephone Co. , 80 Ark. 499 ( 1906 )

Hill, C. J.

1. This was an action by the telephone company against the railroad company for removal by the latter of' thirteen miles of telegraph line from the railroad right of way. The Reporter will state the issues and facts.

The verdict and special finding fix the fact that the telephone line-was constructed before the railroad company had definitely located its line, and the further fact that the telephone line was not interfering with the proper and safe operation of the railroad, and was not a nuisance. These declarations are against the weight of the evidence, but have substantial evidence to sustain them, and hence can not be disturbed here. This takes from the case many questions presented on the instructions and as to the evidence.

This situation is presented, accepting the verdict as sustained by. evidence: A telephone line is lawfully constructed; it obtains right of way over private land by verbal consent of the owners and along a highway under authority granted by section 2934, Kirby’s Digest. Subsequently a railroad is constructed along the way occupied by the telephone line, and it acquires its right of way by purchase and conveyance from the landowners and the county roads occupied by it were vacated (accepting a version most favorable to the appellant). The telephone line is constructed and maintained so as not to render dangerous the operation of the railroad, and not to interfere therewith, and was not a nuisance along the highway or right of way. Can the railroad company, after repeated demands upon the telephone company to remove its line from its right of way, remove the telephone line from the right of way, and thereby destroy its utility?

Concede, without deciding, that the telephone company was a mere licensee, and that the sale of the land containing its line revoked the license for its being there and the vacation of the county roads terminated its rights there, and from .this viewpoint examine the situation of the parties.

The statutes expressly authorize a telephone company to enter a railroad right of way and survey, locate and lay out its line, being liable, however, for damages; and further authorize the condemnation of its way over a railroad right of way if it fails to agree upon its way by consent, contract or agreement. Kirby’s Digest, § § 2934-2936. The statutes further give a property owner damages against a corporation authorized to appropriate private property when it does so without first paying therefor. Kirby’s Digest, § § 2903-2905.

In McKennon v. St. Louis, I. M. & So. Ry. Co., 69 Ark. 104, the court held that the owner of land wrongfully appropriated for a railroad may have prevented such wrongful taking by injunction; but if he has not prevented it, and the railroad does take his land for its way without condemning, then he is remitted to his action for damages, and can not recover his land by ejectment. If the railroad could be- ejected by process at law, certainly the landowner could not forcibly eject and remove the railroad from the land. Exactly the same reasons apply in this case which applied in that one. The same statutes govern here which govern there; and if the statutory remedy for damages was exclusive there, it is necessarily exclusive here. While not mentioned in that case as a reason for the rule against ejecting a railroad company, it is a reason for it that public utilities must not be destroyed when a person has stood by and seen them constructed. Reichert v. St. Louis & S. F. Ry. Co., 51 Ark. 491. The same principle would govern here.

A telephone line is a public utility (Joyce on Electric Dines, § 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. Therefore it follows that the railroad company, taking the view of the law most favorable to it under the evidence accredited by the jury, was not authorized to remove the line of telephone from its right of way, and therefore it was liable for damages for so doing. The instructions sent this issue to the jury; and while they are not as clear as might be, yet the court fails to find prejudicial error in them.

2. The court submitted to the jury this question: “Do you find that the act of cutting the poles and wires of the plaintiff-telephone company by the defendant was done wilfully and intentionally?” The jury answered, “Yes.” The court gave judgment for double the amount of damages found as the actual damages. This was done pursuant to sec. 1899, Kirby’s Digest, which makes it a misdemeanor to wilfully and intentionally destroy, injure or obstruct any telegraph or telephone line, and which adds to the penalty therein provided, “and pay to the owners of said line double the amount of all damages sustained thereby.”

The court did not instruct the jury as to the meaning of the words “wilfully and intentionally,” as used in the statute, and hence their finding can have no weight unless the words are to be taken literal^. This is a criminal statute, and the words mean more than a mere doing voluntarily -or knowingly-jhe act in question. The use of the term “willful,” and in this case almost its synonym, “intentional,” in a criminal or penal statute “implies knowledge and a preference to do wrong.” They mean in such statutes, “not merely voluntarily, but with a bad purpose.” “An evil intent without justifiable excuse.” “Doing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit to do it.” Felton v. United States, 96 U. S. 699; Evans v. United States, 153 U. S. 586; Potter v. United States, 155 U. S. 438; Spurr v. United States, 174 U. S. 728.

These cases and the authorities therein reviewed conclusively settle that there is no place in this case for an invocation of this criminal statute. The weight of the evidence is decidedly that the telephone line was a hindrance and a menace to the safe operation of the road; and if that were true, the appellant was right in removing it. The jury has found that is not true, and it has the testimony of one witness to that effect, and on that question of fact its verdict is conclusive; but this question does not go to the matter decided by the jury, but goes to the good faith or wantonness of the appellant, a question not submitted to the jury. There is no evidence here to submit this issue to the jury. The appellant was right in its position if the telephone line was a nuisance and a menace to its operation. The jury has said on some substantial evidence that it was not, and therefore it is settled that the railroad made a mistake in removing the line, and hence must pay for it; but this is far from proving the bad intent and evil motive necessary to convict it under this criminal statute. It was an error of the court to assess double damages.

Judgment reversed so far as it awards double damages, and affirmed as. to the actual damages found by the jury.