dissenting: -
, ■ In order to make our position clear we will re-state the -facts, so far as we consider them material to a decision -of the case, as follows: In 1884 the Louisville and Nashville Railroad Company and the Western Union Telegraph Company, a corporation organized under the laws of the State of New York, entered into a written contract whereby the railroad company granted to the telegraph company for a term of twenty-five years the exclusive right to construct and maintain telegraph lines upon the rights of way owned or controlled by the railroad company during the existence of the contract. It was further provided that after the expiration of twenty-five years the contract should continue in force until the expiration of one year after written notice should be given by one of the parties to the other of an intention to terminate the same. The telegraph company, among other things, agreed to set apart one wire for the preferential use of the railroad company, and further agreed that if the railroad company should at any time require greater wire facilities on any portion of its road the telegraph company would furnish an additional wire for the railroad company at the cost price thereof upon its poles, or the railroad company might at its own cost string such additional wire upon the telegraph company’s poles in such manner and position as the telegraph company might direct. In 1901 the telegraph company, at the request of the railroad company, strung an additional wire for the railroad company upon its poles, and the cost thereof, amounting to $3820.61, was paid by the railroad company. This wire has ever since remained upon the poles of the telegraph company and has been used exclusively by the railroad company.
On August 17, 1911, the telegraph company served notice upon the railroad company that it would on August 17, 1912, terminate the contract above mentioned. On October 5, 1911, the Western Union Telegraph Company of Illinois was organized under the laws of this State with a capital stock of $25,000, for the purpose of owning, constructing, maintaining and operating lines of magnetic telegraph in the State of Illinois. The subscribers to the capital stock were all officers or employees of the Western Union Telegraph Company of New York, and their subscriptions to the capital stock were paid by the Western Union Telegraph Company of New York. These nominal stockholders of the Illinois corporation elected themselves directors, and chose one of their number, who was then superintendent and is now general manager in Chicago of the Western Union Telegraph Company of New York, as president of the new company. The post-office address of the business office of the new corporation was fixed at hi West Jackson boulevard, in the city of Chicago, which is the Chicago address of the Western Union Telegraph Company of New York. It also appears from the record in this case that on October n, 1911, the executive committee of the board of directors of the Western Union Telegraph Company of New York adopted the following resolution:
“Whereas, the executive committee has heretofore authorized the termination of our contract with the Louisville and Nashville Railroad Company and has authorized the condemnation of rights of way over the railway lines, of the Louisville and Nashville railroad system; and whereas, in order to effect this object it may be desirable to acquire interests in the capital stock of other corporations organized for telegraph purposes; and whereas, under authority of the president $25,000 has been heretofore expended for that purpose in Illinois:
"Resolved, that such expenditures so made by authority of the president is hereby approved; and further, that the president is hereby authorized and empowered to make such other and further expenditures as in his judgment, from time to time, may be nec'essary in order to effect such condemnation of rights of way as aforesaid.”
Thereafter, on December 13, 1911, the following proceedings were taken by the board of directors of the Western Union Telegraph Company of New York, as shown by the minutes of a meeting of the board: “President authorized to make such expenditures as in his judgment, from time to time,, may be necessary to effect condemnation of rights of way along the Louisville and Nashville system, including an initial expenditure of $25,000 for that purpose in Illinois.”
In November, 1911, the charter of the Louisville and Nashville Railroad Company was amended, and the railroad company, in addition to the powers conferred upon it by its original charter, was thereby authorized to construct and operate telegraph and telephone lines, not only for use in operating its railroad, but also for the purpose of serving the public as a common carrier of messages.
On January 12, 1912, the president of the Western Union Telegraph Company of Illinois, who was also the general superintendent in Chicago of the Western Union Telegraph Company of New York, directed the district foreman of the Western Union Telegraph Company of New York to locate a telegraph-pole line for the Western Union Telegraph Company of Illinois along the right of way of the Louisville and Nashville Railroad Company in Illinois, and to locate such line practically on the same line then occupied by the poles and wires of the Western Union Telegraph Company of New. York. These instructions were carried out and the line was located on the south side of the railroad right of way and followed the line then occupied by the poles and wires of the Western Union Telegraph Company of New York. On January 31,' 1912, the Western Union Telegraph Company of Illinois made a formal offer to the railroad company of five dollars per mile for an easement for a pole line upon the railroad right of way. This offer was refused. On February 1, 1912, the railroad company began the location of proposed telegraph-pole lines along the rigffts of way embraced in its railroad system. This system extends through thirteen States and includes about 5000 miles of rights of way, of which only 179 miles are within this State. The work of locating the telegraph lines was begun at Union, Tennessee, and was continued, without interruption, until and including February 27, 1912, on which date the location of the line upon the right of way in Illinois was completed. In the meantime, on February 3, 1912, the Western Union Telegraph-Company of Illinois filed its petition in the county court of St. Clair county, as hereinbefore stated, to condemn a right of way for a telegraph-pole line upon and along all the right of way of the railroad company in this State. The petition, as finally amended, alleged that the petitioner had located its proposed telegraph line upon the right of way of the railroad company; that the line would be constructed of the best material and upon the most approved plans, on the southerly side of the railroad right of way, not less than seven feet from the nearest rail of the main line of the railroad, and that the poles would be so erected and the line so constructed and maintained as not to obstruct or interfere with the business or use of the railroad. It was further alleged that the petitioner does not seek to acquire the space occupied, at the time of the filing of the petition, by any wire or wires on the right of way which the railroad company at such time may have owned or operated, and the petitioner offered to accommodate, carry and support upon the proposed poles such wire or wires and such additional telegraph or telephone wires as might thereafter be needed by the railroad company in the conduct of its business. It also appeared upon the hearing below that the pole line now on the railroad right of way is located at the extreme outer edge of the right of way and as far from the railroad tracks as it is possible to construct a line on the right of way. The width of the right of way varies from 25 feet to 250 feet, the average width being a little less than 100 feet.
On August 5, 1912, the railroad company notified the Western Union Telegraph Company of New York that on and after August 17, 1912, (that being the date fixed by the notice from the telegraph company to the railroad company for the termination of the contract under which the telegraph company maintained its telegraph line upon the railroad right of way,) the use and occupation of the railroad right of way by the telegraph company would be without the permission or consent of the railroad company, and that unless the poles, wires and other property of the telegraph company were removed by December i, 1912,;the railroad company would take possession of all such property and use or dispose of the same as its own property. Thereupon the Western Union Telegraph Company of New York obtained an injunction-in the district court of the United States for the western district of Kentucky restraining the railroad company from talcing action in accordance with its said notice until the termination of the condemnation proceedings then pending in various States, including Illinois. The evidence further discloses that on November 18, 1912, a contract was made between the Western Union Telegraph Company of New York and the Western Union Telegraph Company of Illinois whereby the former company agreed to convey, transfer, assign and set over to the latter company all the telegraph lines and property belonging to it along and upon the right of way of the Louisville and Nashville Railroad Company within the State of Illinois, upon the acquisition by the Illinois corporation of the right to construct, maintain and operate telegraph lines along such right of way and upon the payment of $25,000 to the Western Union Telegraph Company of New York.
As we view the case it is necessary to consider but two of the grounds relied upon by appellees in support of the judgment of the county court: First, that the railroad company has a preferential right to locate a telegraph line upon and along its right of way; and second, that appellant is seeking to condemn property for a telegraph-pole line which is already devoted to the same public use.
The authority of a telegraph company to condemn a right of way for a telegraph line upon and along a railroad right of way is conferred upon domestic corporations by an act entitled “An act to revise the law in relation to telegraph companies,” approved March 24, 1874, in force July 1, 1874. (Rev. Stat. 1874, chap. 134.) This statute does not confer upon a telegraph company the unlimited power to condemn a right of way for a telegraph line upon and along a railroad right of way, but it is only when the construction and maintenance of the proposed telegraph line will not “incommode the public use of the railroad” that such right of way can be obtained by condemnation. The statute thus clearly recognizes that the railroad company has a preferential right to the use of its right of way for railroad purposes, and only confers upon telegraph companies power to take a portion of the railroad right of way for the construction of a telegraph line vdien there is no reasonable necessity for the use of such portion by the railroad company in the operation of its railroad. The evidence in this case shows, and it is a matter of common knowledge, that a telegraph or telephone line is essential to the safe and proper operation of a railroad. The railroad company therefore has a right to use such portion of its right of way as may be necessary or suitable for the construction and maintenance of a telegraph or telephone line, and that it may construct its own pole line and refuse to accept an offer to string its wires upon the poles of 'another company is in our opinion too clear to admit of argument.
The only description in the petition of the right of way sought to be condemned is, that it is located on the southerly side of the railroad right of way and not less than seven feet from the nearest rail of the main line of the railroad. There is a further allegation in the petition that the line will be constructed “upon the most approved plans,” and evidence was introduced by appellant tending to show that the words quoted are well understood in telegraph line construction as meaning, among other things, that the line is to be constructed as far as possible from the nearest rail of the main line of the railroad. Such location would be the same as that now occupied by the line of the Western Union Telegraph Company of New York, and it is conceded by appellant that the portion of the railroad right of way which it seeks to condemn in this proceeding is practically identical with that upon which the line of the Western Union Telegraph Company of New York is now located. The railroad company has also located the line which it proposes to construct, when the poles and wires of the Western Union Telegraph Company of New York shall be removed, upon the same line. Appellant filed its petition for condemnation before the railroad company actually located its proposed line upon the right of way in controversy, and contends that it therefore has the prior right to take this portion of the railroad right of way for the construction of its telegraph line.. The railroad company, however, had long prior to the filing of the petition herein acquired its right of way by. contract with the Southeast and St. Louis Railway Company, and had a right, when the occasion arose, to construct and maintain a telegraph-pole line upon that right of way. Instead of exercising that right itself, it in 1884 contracted with the Western Union Telegraph Company of New York to construct and maintain telegraph-pole lines upon its rights of way and to furnish it the telegraph service then considr ered necessary to operate the railroad, and by this contract obtained the further right, in case it should become necessary, to string an additional wire of its own upon the poles of the telegraph company. This arrangement obviated the necessity of the railroad company constructing its own pole line upon its right of way during the existence of this contract. On August 17, 1911, the telegraph company, in accordance with a provision of the contract, served notice upon the railroad company that the contract under- which it was maintaining the telegraph line upon the ' railroad ¡right of way and furnishing telegraph service to the railroad company for the operation of its railroad would be terminated on August 17, 1912. Until the date fixed by the telegraph company for the termination of the contract no occasion would arise for the construction of a telegraph or telephone line by the railroad company upon its right of way or for the erection of poles to support its wires which were strung upon the poles of the telegraph company. Upon the termination of the contract the railroad company had a preferential right to the use of any particular portion of its right of way for a telegraph line, pro-, vided there was a bona fide intention on its part to construct such a line upon that particular portion of its right of way upon the termination of the contract or within a reasonable time thereafter. Appellant did not wait until the termination of the contract before filing its petition to condemn, but more than six months before the railroad company was under any obligation to begin the construction of its own line in order to preserve its preferential right to the use of that portion of its right of way for such purpose appellant sought to condemn that portion of the right of way which was most available for a telegraph-pole line and which was then being used by the Western Union Telegraph Company of New York and the railroad company, jointly, for a telegraph line. The evidence clearly shows that it was the bona fide intent of the railroad company to construct its own line upon this particular portion of its right of way when the poles of the Western Union Telegraph Company of New York should be removed.
The fact that appellant located its line and filed its petition for condemnation before the railroad company actually located the line upon which it proposed to construct its own telegraph line upon the termination of the contract with the Western Union Telegraph Company of New York does not give appellant the prior right to take that portion of the right of way which it seeks to condemn for a telegraph line. The mere filing of the petition by a company seeking to condemn property for a public use does not give it priority over another corporation which has previously obtained by contract the same property for the same use. In Atlanta, Knoxville and Northern Railway Co. v. Southern Railway Co. 131 Fed. Rep. 657, it was said: “The only right which can be said to result from mere priority of time in the institution of such a proceeding is an equitable right of priority over a later effort to acquire the same property for a like purpose, whether by a like proceeding or contract with notice, actual or constructive. * * * Mere priority of right accorded to one petitioner over another upon the ground of priority in time should not have any retrospective operation, so as to give precedence over an earlier acquisition of the same right of way by contract.”
In Western and Atlantic Railroad Co. v. Western Union Telegraph Co. 138 Ga. 420, the Supreme Court of Georgia, in considering the relative rights of the railroad company and the telegraph company where the latter had been occupying a portion of the railroad right of way under contract but had terminated the contract and was seeking to condemn a portion of the railroad right of way for telegraph lines, said: “The railroad company contends that it should have the right of prior selection in the location of a line of telegraph for'railroad use, and that it intends to erect poles upon substantially the same location as at present occupied by those of the telegraph company. On the other hand, the telegraph company denies that the railroad company has any such right, but asserts that it has the right to select a route over the railroad company’s right of way at any point which does not materially interfere with the railroad company in the conduct of its business. These conflicting claims must be solved by the application of the rule that property dedicated to one public use cannot be subjected to another public use, except in cases where the later use does not materially interfere with the former. If the railroad company owned the existing line of telegraph and it was necessary to maintain and have it for the safe and convenient handling of its trains and cars, no ,one would seriously contend that the telegraph company could deprive the railroad company of its use by virtue of the exercise of the right of eminent domain. Assuming, of course, the necessity of a line of telegraph as auxiliary to the operation of a railroad company, the railroad company would have the same right in locating its telegraph lines as it would have in locating its railroad track or its depot and its warehouses on its own right of way. If a railroad company was originally constructing its track, could it be said that a telegraph company could arbitrarily select sites for its poles, so as to force the railroad company to build its tracks on a less desirable place on its right of way? Surely not. The fundamental basis of the principle of subjecting one public use to a second public use is that the first use must not be materially interfered with. It would, indeed, be a most unfair demand to make of the owner of property charged with the discharge of a public duty that he must make his property subservient to the convenience of the demandant, who desires it for another public use. The railroad company is held off, by its contract, from constructing its line of telegraph on that portion of its right of way which it prefers, and which it has selected, until the contract expires, and the telegraph company should not be given a preference because it is not fettered by the same contract in proceeding to condemn the same portions of the railroad right of way.” This case is almost identical with the case at bar, and the reasoning of the Georgia court seems to us, upon legal principles, to be unanswerable. We do not agree with the majority that this case can be distinguished from the case at bar.
In our judgment the authorities upon this subject, as well as reason, support the contention that the railroad company in the case at bar has a preferential right to construct its telegraph line upon that portion of its right of way which appellant seeks to condemn.
Another insuperable obstacle to granting the prayer of the petition for condemnation is, that at the time the petition was filed the property sought to be taken was devoted to the same public use for which appellant seeks to condemn it. This court has frequently held that property devoted to a public use cannot be condemned by another for the same public use. (Lake Shore and Michigan Southern Railway Co. v. Chicago and Western Indiana Railroad Co. 97 Ill. 506; St. Louis, Alton and Terre Haute Railroad Co. v. Belleville City Railway Co. 158 id. 390; Suburban Railroad Co. v. Metropolitan West Side Elevated Railroad Co. 193 id. 217.) As a result of the conclusion reached by the majority, appellant will obtain a judgment permitting it to enter upon the right of way, upon the payment of the compensation to be awarded the railroad company, and erect its poles at the identical places where the poles of the present line are located and string its wires in the same spaces that the present wires are strung." In' fact, it appears to be the purpose of appellant to take over the poles, wires and fixtures of the Western Union Telegraph Company of New York on the railroad right of way instead of constructing a new line. It is true that the Western Union Telegraph Company of New York is not asserting its right, by reason of prior occupancy, to this portion of the railroad right of way until the termination of its contract, in opposition to appellant’s petition to condemn. The reason why that company is not only not resisting the petition to condemn but has by contract since the filing of the petition herein shown its willingness to surrender its right of way to appellant is obvious. Appellant was organized by the Western Union Telegraph Company of New York for the express purpose of obtaining a right of way for a telegraph line upon the railroad right of way by condemnation, a foreign corporation having no power to obtain such right of way by condemnation, and the Western Union Telegraph Company of New York is the beneficial owner of all of appellant’s capital stock. The Western Union Telegraph Company of New York was not, however, at the time of the filing of the petition, the only party interested in the telegraph line located on the railroad right of way. The railroad company was also interested to the extent that it was, under its contract with the Western Union Telegraph Company of New York, entitled to demand that that company maintain its line of poles and wires on the railroad right of way until the termination of the contract, in order that it might be able to perform the duties and obligations owing by it to the railroad company under the terms of that contract. The Western Union Telegraph Company of New York should not be permitted to relieve itself from the performance of those duties and obligations nor deprive the railroad company of its. preferential right to construct its own telegraph line upon the most desirable portion of its right of way upon the termination of the contract by consenting to the condemnation of the property upon which its line is located or by failing to object to such condemnation. Under such circumstances the railroad company has such an interest in the existing telegraph line as entitles it to urge as an objection to appellant’s petition that the property sought to be taken was at the time of filing the petition, and is now, devoted to the same public use for which it is sought to be taken.
The majority opinion holds that the amendment to the petition merely limited the character of the easement sought to be condemned. This we consider to be manifestly erroneous. The evidence disclosed that the railroad company, at the time of the filing of the condemnation petition, was using the identical portion of the right of way for the same purpose for which it was sought to be condemned. That was fatal to appellant’s petition, and in an attempt to obviate this objection it proposes the joint use of that portion of the right of way by the railroad company and the telegraph company for a pole line; and the majority opinion holds that the railroad company must either accept this offer or remove its wires from that portion of its own right of way. In support of the proposition that this amendment was more than an offer or stipulation, in that it limited the character and nature of the easement sought, the majority opinion uses as an illustration the case of a railroad company seeking to condemn a right of way over the right of way of another railroad, and assumes a case in which the petitioning company offers to construct an overhead or underground crossing. This offer could only be for the purpose of reducing the amount of damages. -An illustration more apt would be one where a railroad company should attempt to condemn the right of way of another railroad, and in order to obviate the objection that the property was already devoted to the same public use, would, in its petition, offer to permit the old company to use the right of way with it, jointly. It must be manifest that an offer of this kind would not entitle the petitioner to condemn. It should also be noted in this connection that the offer by the telegraph company does not state upon what terms it will permit the use of its poles, etc., by the railroad company. The only purpose that can be accomplished in any case by limiting the character of the easement sought to be condemned is to reduce the amount of the damages, and in no case can any such offer or provision in the petition operate to confer upon the petitioner a right to condemn which it otherwise would not have.
There is no basis for the statement in the majority opinion that this amendment was made because it had developed on the trial that the railroad company had, by permission or license from the telegraph company, strung a telephone wire and some signal wires for short distances at certain places on the poles of the telegraph company. We are, unable to find any basis in the record for this statement, and this is not the explanation given by the telegraph company of the reason for filing the amendment. It states in its brief and argument: “It may be argued that, regardless of the fact that the defendants had never located either a pole line of their own or any wire upon a pole line” of the telegraph company, “yet the mere fact that there existed one wire of the defendant carried on the poles of the New York Telegraph Company precludes any telegraph company * * * from condemning a right of way on the same side of the track or within a certain but undefined distance of that wire. It was to meet and overcome such an objection that petitioner added the amendment of January 12, 1914, to its condemnation petition.”
The majority opinion also states in support of the conclusion that the wire claimed by the railroad company in fact belongs to the telegraph company, that this wire was only a part of the accommodation furnished; that the telegraph company furnished with it support for its poles and cross-arms, electric current from its batteries and necessary connections and other things which made the wire part of the entire system and which were much greater than the cost of the wire when placed on the company’s poles. What is “much greater” the opinion does not point out. It does appear, however, from the record that the estimated cost of the wire, alone, and labor to put it up, was $2615.92. It also appears that in addition to stringing that wire the railroad company ordered that it be “cut into” certain stations and offices along the line, and that the final bill paid by the railroad company for “material used and labor, freight and other expenses,” was $3820.61. It therefore appears that the railroad company paid all the cost connected with the installation of the wire ready for service; and so far as support of this wire by the poles and cross-arms of the telegraph company is concerned, that was part of the consideration for the use of the right of way by the telegraph company under its contract. The statement in the majority opinion that “the effect of the contract, and the transaction consummated pursuant thereto, was that the telegraph company added an additional wire to its system and the railroad company paid a certain price for its use,” is therefore not supported by the evidence.
The majority opinion also states: “At the time of filing the suit the contract between the Western Union Telegraph Company of New York and the Louisville and Nashville Railroad Company had been terminated by notice duly given as provided.” This is not an accurate statement and to us seems to be misleading. The contract was still in force when this suit was filed and the railroad company was still fettered by its contract with the New York Telegraph Company, the latter company having the right to continue the maintenance of its pole line on the railroad right of way to the exclusion of any such lines constructed by the railroad company. The petition herein was filed February 3, 1912, while the contract did not terminate until August 17, 1912, and for that reason the railroad company had had no opportunity to construct or begin the construction of its own line when the petition was filed. The majority opinion continues: “And subsequently the railroad company gave to the Western Union notice to remove all its poles, wires and other property from the railroad right of way.” This notice was given on August 5,—twelve days before the time fixed by the telegraph company for terminating the contract,—and notified the telegraph company to begin such removal immediately after August 17. As between the railroad company and the New York Telegraph Company it was the duty of the latter company to comply with this notice.
The majority opinion assumes that the railroad company is bound to accept the offer of the telegraph company to permit it to string its wires on the poles of the telegraph company, and if it refuses to accept the offer it must construct its lines on some other part of its right of way, and ignores the fact that the railroad company had, before the petition was filed, obtained by contract its right of way for a telegraph line. The case of Golconda Northern Railway v. Gulf Lines Connecting Railroad of Illinois, 265 Ill. 194, is cited in the majority opinion as authority for the proposition that “preference is to be given in condemnation proceedings to the one who first locates the line which is in dispute.” That is undoubtedly true where some third person owns the line over which the right of way is located and condemnation proceedings are brought to secure this right of way. That case, however, was not a condemnation proceeding but was a bill in equity by one railroad company against another for an injunction to restrain the latter from interfering with, obstructing or hindering the plaintiff in the construction of its railroad through a certain narrow pass. The defendant was a grantee of another railroad company which had obtained deeds for its right of way through this pass from the owners of the land, such deeds containing conditions subsequent requiring the road to be constructed by a certain time. The complainant had subsequently obtained deeds from the same land owners for the same right of way through the pass, and claimed, among other things, that the former grants had become forfeited by the failure to construct the road within the time limits of the deeds, and therefore it held title to the right of way by virtue of subsequent deeds. The decision was against complainant, it being held that only the owners of the land, their heirs and devisees, could take advantage of a breach of a condition subsequent. Instead of being an authority in favor of the proposition announced in the majority opinion, it seems to us that this case recognizes the doctrine for which we contend, that one company may by deed or contract obtain the preferential right over another company seeking thereafter to obtain a right of way over the same premises for the same purpose. Moreover, there is a statute which applies to the location of rights of way by railroads which requires a railroad company to file a plat showing the location of its railroad in the office of the recorder of deeds within six months after the railroad is located. (Hurd’s Stat. 1913, chap. 109, sec. 9.)
The judgment of the county court should be affirmed.