Southwestern Bell Telephone Co. v. Biddle

STATEMENT BY THE COURT.

Appellee brought suit against the Southwestern Bell Telephone Company to recover damages on account of appellant's having placed a line of telephone poles along highway No. 67, in front of his property, along and over his land, within a strip of land condemned by the State Highway Commission for changing and widening the highway.

This was done without securing a right-of-way from appellee, or any order of condemnation of the land. The poles were set and wires strung on and over appellee's land about 30 or 40 feet from the center of the concrete highway.

Appellant had maintained a line of poles for years along this highway, and in March, 1930, upon the petition of the State Highway Commission, the county court of Hot Spring County made an order changing the location of the road, making it necessary for the appellant to change the location of its line of poles, which were placed along the edge of the highway, just within the right-of-way fence.

Appellee alleged his ownership of the lands adjacent to the city of Malvern, describing them, and that in the year 1930, without right or his knowledge or consent, appellant entered upon the lands, erected its poles and strung its wires and cables along and over his lands, to his damage in the sum of $500.

Appellant answered, denying that it set or placed any poles on appellee's lands or damaged them in any way.

It appears from the record that appellee owned the tract of land on highway No. 67, about a mile east of Malvern and that the telephone company set its poles on, and strung its wires and cables over, his land about 45 or 50 feet from the center of the highway without his knowledge or consent in the year 1930. The poles were set along the front of his land, between it and the highway, entirely across the front of said tract.

He testified that he had been damaged in the sum of $500 by the taking of the land for such use; that the land was worth about $210 per acre, being on the south side of the highway and about three quarters of a mile from the corporate limits of Malvern. The land was a 24-acre tract, upon which appellee did not live, and there were 7 poles strung along across the tract with cables on them. The road was widened by order of the county court without any notice to appellee of its being done, and the appellant company erected its poles and strung its wires over the strip of land condemned for widening the road.

Many witnesses testified as to the value of the land and the amount of damages occasioned by the erection of the poles thereon, all stating they were familiar with the land and the value thereof. Some of these witnesses placed the value of this land at $250 per acre, and the damage thereto at between $400 and $500; others valued it at $200 per acre and fixed the damage at between $250 and $400; while still others testified that the land was not damaged at all by the erection of the poles, which they said were set up about 45 feet from the center of the road and five feet within the right-of-way fence.

The divisional superintendent of the company stated he took up the matter of the relocation of the telephone poles with the Highway Department, and that he received permission and directions as to where they should be placed, and it was done as directed by the Highway Department. He also said that the line as presently constructed did not interfere in any way with the use of the property; there being no poles in front of the entrance to appellee's house thereon.

Several witnesses testified that the poles as erected did not interfere with the use of appellee's property, which they did not think was damaged because of them. They did say, however, that an embankment was made in widening the road, the bank of it being 5 or 6 feet high, and excavation being made along the dump.

The court instructed the jury, which returned a verdict in appellee's favor for $250 damages, and, from the judgment thereon, this appeal comes. (after stating the facts). Appellant insists that the court should have directed a verdict in its favor, it being undisputed that the line of poles was placed on the strip of land condemned by the Highway Department for changing the highway, which had authority under the statute, and granted it permission to erect the poles where they were paced, and that, having done so, they were not liable to the pavement of any damages to appellee for their erection upon such right-of-way.

The statute provides, 3989, Crawford Moses' Digest, for construction and operation of telegraph and telephone, etc., lines "along and over the public highways * * * and streets of the cities and towns of this state and on and over the lands of private individuals * * * provided the ordinary use of such public highways, streets, etc., be not thereby obstructed, * * * and that just damages shall be paid to the owners of such lands; railroad and turnpikes by reason of the occupation of said lands, etc., * * * by said telegraph or telephone corporations."

The relocation of highway No. 67 running along in front of appellee's property was made pursuant to an order of the county court of Hot Spring County in 1930. The Constitution (art. 7, 28, Constitution of 1874) and our statute (5249, Crawford Moses' Digest) gives the county courts exclusive authority to open new roads and to make such changes in old roads as they may deem necessary and proper. Our court has held that said statute authorizes telephone companies to construct and operate and maintain its lines along and over the public highway and streets of the cities and towns, provided "the ordinary use of such highways and streets be not obstructed by reason of the occupation by said telephone companies." Ahrent v. Sprague, 139 Ark. 416,214 S.W. 68; St. Louis, I. M. S. Ry. Co. v. Batesville Winerva Telephone Co., 80 Ark. 499, 97 S.W. 660.

The authority given by the said statute (3989, Crawford Moses' Digest) for telephone companies to construct, operate and maintain their lines over the public highways, etc., only gives them the free use of such highways, provided they be not obstructed thereby, so far as the State's interest and that of the public is concerned, expressly providing that "just damages shall be paid to the owners of such lands, * * * by reason of the occupation of said lands, * * * by said telegraph or telephone companies." The statute could not authorize the free use of appellee's land in any event in this instance by the telephone company, since the injury complained of was not for erection of the poles and lines upon an old highway, already long established, but upon appellee's lands just being taken for a change in the location of such high way, Article 2, 22, constitution of 1874.

It is not denied that appellee had no notice of the condemnation proceedings, and certainly the statute did not contemplate that the landowner in a proceeding for condemnation of his lands for public use should not be allowed damages for the value of it, nor would he be expected to be bound by the allowance made for damages of which he had no notice, nor does the statute contemplate that he should be held to look to the county alone for payment of damages for his land taken for such public use.

We also think that the erection of a telephone line upon the public highway along lands of adjoining owners, in which the public only has an easement for use as a highway, would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted.

The testimony for determining the value of such lands and the damage thereto is largely a matter of opinion of the witnesses, who are familiar with the location of the lands and the use for which they are best suited, having weight only as the reason given by such witness for such opinion of value may tend to convince the jury. Ft. Smith Van Buren Bridge District v. Scott, 103 Ark. 405,147 S.W. 440. The evidence is sufficient to support the verdict for damages, and the appellee could not evict the telephone company from the premises, and was limited to a suit for damages, as his remedy, not having been compensated therefor under the provision of the statute, 5249, Crawford Moses' Digest.

We find no error in the record, and the judgment is affirmed.