Roaring Springs Townsite Co. v. Paducah Telephone Co.

Plaintiff in error applied for a temporary injunction to restrain defendant in error from constructing a telephone line across a section of land, which belonged to plaintiff in error in Motley County. One hundred and sixty acres, near the center of the section, had been subdivided into lots, blocks, streets and alleys, for a townsite, and both by plat and deed the streets and alleys had been dedicated to public use, by plaintiff in error; provided, however, that plaintiff in error undertook to reserve to itself the exclusive right to grant, for a valuable consideration, to any person or corporation the right to use the streets and alleys to construct telephone, telegraph and electric light wires and poles, and gas, water and sewer mains. Some of the town lots had been sold by plaintiff in error, but there have not been sufficient residents of the townsite to form a municipal government. Defendant in error had incorporated for the purpose of operating a system of telephone lines, both local and long distance in Cottle County, and long distance in Motley, Dickens, Childress and Foard Counties, and had begun erecting poles and stringing wires in and over the streets and alleys of the aforesaid 160 acres of land, and along a certain right of way over the remainder of the aforesaid section, which it had undertaken to condemn by certain proceedings against plaintiff in error, in the County Court of Motley County, which were claimed to be invalid on various grounds but principally on the ground that defendant in error did not possess any right to exercise the power of eminent domain.

Plaintiff in error's right to the injunction must rest either upon an invasion by defendant in error of a valid reservation by plaintiff in error of exclusive right to grant the use of the streets and alleys in the townsite to a corporation operating a long distance telephone line, or upon an unlawful infringement upon its title and possession as owner of the portion of its section of land outside of the townsite.

As heretofore construed, article 1231 of our Revised Statutes declares it to be the public policy of the State that corporations created for the purpose of constructing and maintaining long distance telephone lines, shall be authorized to construct their poles, wires, etc., upon any of the public roads, streets and waters of the State, in such manner as not to incommode the public in the use of the roads, streets and waters, and this statute is a declaration that the Legislature considers the interest of the public in convenient telephone service superior to any private interest. City of Brownwood v. Brown Tel. Tel. Co., 106 Tex. 116, 157 S.W. 1163.

There are no averments of sufficient facts to support any claim that the public would be incommoded in its use of the townsite streets and alleys by defendant in error's poles or wires, but it is denied by plaintiff in error that defendant in error is a corporation created to construct and maintain a long distance telephone line or that the streets and alleys of the townsite are public streets or roads within the true meaning of article 1231.

We think that a corporation organized for the express purpose of operating a long distance telephone line possesses the power, and hence may properly be treated as "created for the purpose, of constructing and maintaining" such line. For the maintenance of the line is necessary to the operation thereof, and the construction of the line is a direct and usual method of procuring it for maintenance and operation. No one now doubts that the law is correctly declared when it is said in Northside Ry. Co. v. Worthington, 88 Tex. 569, 53 Am. St., 778,30 S.W. 1056: "Corporations are the creatures of the law, and they can only exercise such powers as are granted to them by the law of their creation. An express grant, however, is not necessary. In every express grant there is implied a power to do whatever is necessary or reasonably appropriate to the exercise of the authority expressly conferred. . . . In short, if the means be such as are usually resorted to and a direct method of accomplishing the purpose of the incorporation, they are within its powers; if they be unusual and tend in an indirect manner only to promote its interests, they are held to be ultra vires."

In our opinion, streets in a townsite, which have been dedicated to public use, in the manner shown by the petition of plaintiff in error, are subject to the operation of the statute.

The contention is without merit that the dedication to the public of the streets and alleys must fail for want of acceptance by a municipality embracing the 100 acres. The court in Atkinson v. Bell, 18 Tex. 474, announced that a dedication to the public would not be defeated for want of an accepting grantee, adopting the rule on that subject expounded in City of Cincinnati v. the Lessees of White, 6 Peters, 432, 8 L.Ed., 452, as follows: "Dedications of land for public purposes have frequently come under the consideration of this court; and the objections which have generally been raised against their validity have been the want of a grantee competent to take the title; applying to them the rule which prevails in private grants, that there must be a grantee as well as a grantor. But that is not the light in which this court has considered such dedication for public use. The law applies to them rules adopted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor, and secure to the public the benefit held out, and expected to be derived from, and enjoyed by the dedication. It was admitted at the bar, that dedications of land for charitable and religious purposes, and for public highways, were valid, without any grantee to whom the fee could conveyed. Although such are the cases which most frequently occur and are to be found in the books, it is not perceived how any well-grounded distinction can be made between such cases and the present. The same necessity exists in the one case as in the other for the purpose of effecting the object intended. The principle, if well founded in the law, must have a general application to all appropriations and dedications for public use, where there is no grantee in esse to take the fee. But this forms an exception to the rule applicable to private grants, and grows out of the necessity of the case. In this class of cases there may be instances, contrary to the general rule, where the fee may remain in abeyance until there is a grantee capable of taking, where the object and purpose of the appropriation look to a future grantee in whom the fee is to vest. But the validity of the dedication does not depend on this; it will preclude the party making the appropriation from reasserting any right over the land, at all events so long as it remains in public use; although there may never arise any grantee capable of taking the fee." The doctrine is again approved in Parisa v. City of Dallas, 83 Tex. 258, 18 S.W. 568.

The substance of the opinion in the case of the City of Corsicana v. Zorn, 97 Tex. 323, 78 S.W. 925, as applied to the facts of this case, is that plaintiff in error's deed of dedication had the effect to invest in the purchasers of townsite lots and their assigns the right for themselves and for all others to forever use the streets and alleys, with the duty of enforcing such right imposed on any incorporated town or city which might be later so formed as to include the streets and alleys. The objection of the former owner in that case, that there had been no acceptance of the dedication of the streets and alleys, was thus disposed of: "There was no necessity for such acceptance, for the right which vested in the purchasers of the different lots and through them in the public was irrevocable." The public is as much interested in being afforded convenient means of long distance telephone communication, through the utilization of streets and alleys dedicated to the use of the public, before as after the streets and alleys are subject to municipal control, and we can see no good reason for denying the salutary benefits of article 1235 from the time the streets and alleys are impressed with the public use.

Having determined that under the public policy of the State, a corporation formed to operate a long distance telephone line was clothed with the authority to construct and maintain its poles and lines along the dedicated streets and alleys in an unincorporated townsite, the attempt to reserve to plaintiff in error a right inconsistent with such authority can not be upheld. For, the general rule that the dedicator may impose such restrictions as he may see fit on making a dedication of his property is subject to the thoroughly established limitation that the restriction be not repugnant to the dedication or against public policy. 13 Cyc., 460; Richter v. Granite Mfg. Co.,107 Tex. 63, L.R.A., 1916A, 504, 174 S.W. 281; McDaniel v. Puckett, 68 S.W. 1011; Jones v. Carter, 45 Texas Civ. App. 450[45 Tex. Civ. App. 450], 101 S.W. 514; Koenigheim v. Miles,67 Tex. 121, 2 S.W. 81; Richards v. Cincinnati,31 Ohio St. 513.

The power of eminent domain is expressly conferred on long distance telephone companies by article 1232, R.S., and the averments of plaintiff in error's petition are wholly insufficient to show any invalidity in the condemnation proceedings conducted by defendant in error.

It follows that plaintiff in error failed to show that it was entitled to the injunction which it sought, and the judgments of the District Court and of the Court of Civil Appeals are affirmed.

Affirmed.

DISSENTING OPINION.