Messrs. H. D. Estabrook, Rush Taggart, and John F. Dillon for Western Union Telegraph Company. [195 U.S. 594, 595] Mr. John G. Johnson for the railroad company.
Mr. Justice McKenna delivered the opinion of the court:
This is a petition on the law side of the circuit court for the western district of Pennsylvania to condemn part of the defendant's right of way and appropriate it to telegraph purposes. There was also a bill on the equity side praying for an injunction to restrain defendant in error from dispossessing [195 U.S. 594, 596] plaintiff in error during the pending of the condemnation proceedings.
The circuit court refused to approve the bond tendered with the petition for condemnation, and ordered the petition dismissed. 120 Fed. 362. The circuit court of appeals affirmed that action. 59 C. C. A. 113, 123 Fed. 33.
The bill in equity, though not before us technically, has been freely referred to in argument, and, besides, many of the allegations of the petition are the same as those in the bill and appeal passed on in Nos. 89 and 199. The same rights are asserted under the act of July 24, 1866 (14 Stat. at L. 221, chap. 230), as there considered. The contention here, as there, is that the telegraph company has the right to maintain its lines of telegraph over and along the railroads of the railroad company upon making compensation to the railroad company for the use so appropriated, so long as the maintenance of its telegraph lines does not materially interfere with the ordinary travel of such roads, and that the right can be asserted by proceedings in eminent domain. It is conceded that there is no general law of Pennsylvania giving that right to the telegraph company. The contention that such right is given by the act of 1866 we considered in Nos. 89 and 199, and decided against the contention. But there are other elements in this case. The telegraph company is the lessee of the Atlantic & Ohio Telegraph Company (the lease is terminable at the option of either party by giving six months' notice), and claims eminent domain as successor of that company. The claim rests upon the statute of Pennsylvania incorporating the Atlantic & Ohio Telegraph Company. That statute was passed in 1849, and provided, in 5, that it should be lawful for the company 'to erect and construct works, edifices, fixtures, and structures along and across any of the roads, highways, streets, and waters within this state; the said works to be so placed as not to interfere with the common use of such roads, highways, streets, and waters.' The company was authorized to enter into and occupy any land for the purposes of locating and [195 U.S. 594, 597] constructing its lines, upon securing or tendering such compensation as might be agreed on between it and the owners of the land, or in the manner mentioned in the statute. The circuit court and the circuit court of appeals rejected the claim of the telegraph company based on that act. The decision was rested on two grounds: (1) That railroads were not highways within the meaning of the statute; (2) as expressed in the opinion of the circuit court of appeals:
(1) In the opinion in Nos. 89 and 199 we narked a distinction between highways and railroads, against a contention which identified them in legal meaning and effect. We need not enlarge upon what we there said. Highways and railroads may be assimilated in legal contemplation to a certain extent, and considerations which apply to one within that extent apply to the other. To apply them beyond that extent would be to confound the distinctions of common speech and practice, and destroy property rights long recognized to exist. And we do not deem it necessary to follow and answer in detail the very able arguments of counsel. It is enough to say that they have carried the analogies between ordinary high- [195 U.S. 594, 598] ways and railroads too far; indeed, have gone beyond analogy, and have contended for almost legal coincidence in attributes and effect.
(2) But there is another ruld applicable to grants of eminent domain, which is also fatal to the contention of the telegraph company of the rights claimed by the telegraph company under the lease from the Atlantic & Ohio Telegraph Company. Eminent domain cannot be delegated. Lessees cannot exercise it. 1 Lewis, Em. Dom. 243, and cases cited. It is to meet this prohibition, probably, that certain allegations of the petition are made. It is alleged that the Atlantic & Ohio Telegraph Company entered into a 'contract to lease' with the telegraph company the 1st of April, 1864; that afterwards the former company made an agreement with the railroad company whereby the latter company granted to the said Atlantic & Ohio Telegraph Company permission to construct and maintain a line of telegraph wires 'along and adjacent to the line of railroad' from Philadelphia to Pittsburg, 'without limit as to term and duration,' which contract was afterwards assigned to the telegraph company (plaintiff in error), and the assignment was ratified and affirmed by the act of the legislature of Pennsylvania, entitled 'An Act Supplemental to an Act Entitled 'An Act to Incorporate the Atlantic & Ohio Telegraph Company, Approved March 24, 1849, and to Confirm Certain Agreements Executed by Said Company,' Approved May three, one thousand eight hundred and seventy-one, the same as if the said lease and contract had been made by virtue of express authority of law- said act of assembly also providing that said Atlantic & Ohio Telegraph Company should have and possess all the rights, powers, and privileges conferred by the 3d and 4th sections of the act of the legislature of Pennsylvania to incorporate the Eastern Telegraph Company, approved the 5th day of April, 1866.'
This act, the petition alleged, gave to the telegraph company 'all the corporate rights, powers, privileges, and fran- [195 U.S. 594, 599] chises of said Atlantic & Ohio Telegraph Company, including the right to appropriate, on inability to agree with the owner, all lands necessary for the construction, maintenance, and operation of the said lines of telegraph from Philadelphia to Pittsburgh, with any and all such branches therefrom as it may think proper.'
The acts cited affirmed agreements or leases theretofore made. Subsequent agreements were provided for, if at all, by 3 and 4 of the act incorporating the Eastern Telgraph Company, as follows:
Under those sections the Atlantic & Ohio Telegraph Com- [195 U.S. 594, 600] pany was authorized to lease its lines to the telegraph company. A lease had already been made, as we have seen. Those sections also authorized the companies to 'form a union' and 'become a body corporate and politic, under such name and style' as they should adopt. That was not done. The telegraph company, therefore, is the simple lessee of the Atlantic & Ohio Company, and has only the powers of a lessee, and as such cannot exercise the right of eminent domain conferred on the Atlantic & Ohio Company.
It is, however, further alleged that the telegraph company, by the power vested in it by the lease from the Atlantic & Ohio Company and the acts of the Pennsylvania legislature confirming the same, and 'in the exercise of all and every other power enabling it in anywise to do so,' duly located a single line of telegraph along and upon the right of way of the railroad company, and attempted to agree with the latter company upon the prices of compensation therefor; and 'that the aforesaid corporate action of the Western Union Telegraph Company has been duly ratified and approved by corporate action in that behalf by the said Atlantic & Ohio Telegraph Company.'
It will be observed that the location, so called, was made by the telegraph company and in its own name. It was not made by the Atlantic & Ohio Company and in its name. And the Atlantic & Ohio Company is not a party to this action. The action was commenced and is prosecuted by the telegraph company alone. The prayer is that, upon the payment of the compensation which shall be directed to be paid for the 'rights and interests acquired thereby (that is, by the statutes and proceedings set out in the petition) by the said Western Union Telegraph Company, possession be adjudged to the Western Union Telegraph Company by this court of the said use, right, and interests according to law, and that the title to the said rights and interests, as against the defendant, thereby vest in the said Western Union Telegraph Company for the purposes aforesaid; . . .' [195 U.S. 594, 601] If it can be said that under the allegations of the petition the Atlantic & Ohio Company retains its rights as the lessor of the telegraph company, still as to such rights it is a necessary party. To have made it a party might have precluded jurisdiction in the circuit court.
But the telegraph company contends for eminent domain in its own right as lessee of the Atlantic & Ohio Telegraph Company, and in its own name, and combats the view that it cannot receive a delegation of that power. The following cases are relied on: California C. R. Co. v. Hooper, 76 Cal. 404, 18 Pac. 599; Crolley v. Minneapolis & St. L. R. Co. 30 Minn. 541, 16 N. W. 422; Chicago & W. I. R. Co. v. Illinois C. R. Co. 113 Ill. 156; Kip v. New York & H. R. Co. 6 Hun. 24, 67 N. Y. 227; Abbott v. New York & N. E. R. Co. 145 Mass. 450, 15 N. E. 91.
These cases do not sustain the contention. In the case in 76 Cal. a corporation commenced proceedings in eminent domain. It afterwards consolidated with other corporations. The new corporation thus created was held to be entitled to continue the proceedings in its own name and for its benefit, because it had acquired that right in the manner provided by the statutes of the state.
In 30 Minn. a railroad corporation condemned, paid for, and took certain land for its right of way. Without constructing its road, it transferred the right of way to another railroad corporation. The owner of the land taken brought ejectment for it, alleging the invalidity of the transfer. It was held that his interests were not affected by the transfer, and he could not question the capacity of the first company to make, nor the second company to receive, the transfer.
In 113 Ill. the facts are somewhat complicated, but the point decided relevant to our present discussion is that it mattered not that the necessity for an increase of a right of way of a railroad company for additional tracks was caused by the use of the road by other companies acting under lease or by contract, nor by what company or companies the road [195 U.S. 594, 602] was operated. It was still a public use, and (to quote the court) 'the needs of the lessees are as those of the lessor company, and any condemnation for their wants may proceed in such latter company's name, and it all the while stands responsible for the running of the road.' Kip v. New York & H. R. Co. 6 Hun, 24, and 67 N. Y. 227, were cited.
If this case supports one contention of the telegraph company, it destroys another. It establishes that, if the right of eminent domain is given to the telegraph company by the lease from the Atlantic & Ohio Telegraph Company, that right can only be exercised in the name of the latter company. And such is also the effect of the cited cases, or, rather, the cited case, for it is only one case appearing at different stages in the reports. The plaintiff in the case, who was appellant in the court of appeals (67 N. Y. 227), brought suit against the defendant company to restrain it from prosecuting proceedings to condemn certain lands owned by him in the city of New York. He had leased them to the company for twenty- one years, and his contention was that the condemnation proceedings would impair the obligation of the lease and should be enjoined.
The plaintiff alleged also a lease by the defendant of its road and property to the New York Central & Hudson River Railroad Company for 401 years, and claimed that the lease abrogated the proceedings to condemn the land, and terminated and removed all necessity for its acquisition for the use of the defendant. It was held (1) that the relation created by the lease was no impediment to the exercise of eminent domain conferred upon the company by the statute of the state; and (2) that the proceedings to condemn were not affected by the lease. The court observed that the same necessity existed in favor of the defendant after as before the lease, and if the necessity was only in favor of the lessee it was competent for 'the lessee to continue the proceedings in the name of the defendant.' (Italics ours.) [195 U.S. 594, 603] In Abbott v. New York & N. E. R Co. the questions involved were whether the power to take land by eminent domain may be given to a foreign corporation, and whether a corporation by the consent of the legislature may take the power as a quasi successor of another corporation to which it was originally granted. Under the statutes of the state those questions were answered in the affirmative, and it was in regard to those questions and statutes that Chief Justice Holmes, now a justice of this court, said that the reasons which have led some courts and judges to doubt the necessity of the consent of the legislature to a transfer of the right of eminent domain from one corporation to another 'show that the delectus personarum is of little more than theoretical importance, and is the least determining element in the more common cases where the power is conferred.' The case is not like that at bar, and need not be further analyzed.
A case more applicable to the case at bar is Worcester v. Norwich & W. R. Co. 109 Mass. 103. In that case the railroad company was required to unite with others in establishing a passenger station. Resisting the proceedings which were brought to appoint commissioners to select a location, it was urged that it might become necessary to exercise the right of eminent domain, and against that the railroad pleaded a lease to the Boston, Hartford, & Erie Railroad Company, which had been confirmed by the legislature. There were other transfers of interests, and of them and the lease the court said: 'Yet none of these leases or assignments can be construed to extend to the lessees or assignees the power to exercise the right of eminent domain, or to restrict the right of the legislature to alter or repeal the charters.' And again: 'The lease by the Norwich & Worcester Railroad Company did not make the lessees, or their representatives, parties to the grant of power to exercise the right of eminent domain. That right remained in the original corporation, and the legislature might properly deal with it exclusively in amending their (its) charter.'
Judgment affirmed. [195 U.S. 594, 604]
Mr. Justice Harlan dissenting:
The judgment of the circuit court in this case rests mainly upon the same grounds as the judgment in cases Nos. 89 and 199. For the reasons stated in my opinion in those cases, I dissent from the opinion and judgment in this case.