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may be raised by a claimant after such final action by the Land Department under that act, we adjudge that such dismissal must be without prejudice to any suit that may, according to established principles, be rightfully instituted by a claimant after the jurisdiction of the Department in respect of any particular lands has ceased. Thus modified, the decree of the Circuit Court must be affirmed.
It is so ordered.
PPEAL from the United States Circuit Court of Appeals for the Third Circuit to review a decree which reversed an order of the Circuit Court for the District of New Jersey granting a preliminary injunction in the same suit. Affirmed.
See same case below on appeal from order granting preliminary injunction, 59 C. C. A. 113, 123 Fed. 33.
Statement by Mr. Justice McKenna:
This is a bill in equity filed in the circuit
Mr. Justice Brewer took no part in the court of the District of New Jersey by the decision of this case.
.(195 U. S. 540)
WESTERN UNION TELEGRAPH COM-
PENNSYLVANIA RAILROAD COMPANY and United New Jersey Railroad & Canal Company.
Eminent domain-rights of telegraph companies on railway rights of way.
1. Telegraph companies were not granted the enter upon and occupy the rights of way of railway companies without the latters' consent, by the act of July 24, 1866 (14 Stat. at L. 221, chap. 230; Rev. Stat. §§ 5263 et seq. U. S. Comp. Stat. 1901, p. 3579), giving tele
right of eminent domain, or any right to
graph companies the right to construct, main
tain, and operate telegraph lines through and over the public domain, and "over and along any of the military or post roads of the United States," since such statute must be deemed but an exercise by Congress of its power to
withdraw from state interference interstate commerce by telegraph.
2. Railway rights of way are not made public property by charter provisions declaring the railways "public highways," so as to subject such rights of way to occupation by telegraph companies without the consent of the railway company, under the act of July 24, 1866, giving telegraph companies the right to construct, maintain, and operate telegraph lines through and over the public domain, and "over and along any of the military or post roads of the United States."
[Nos. 89, 199.]
appellant against the appellee, the Pennsyl-
the main question in the case.
The appellant, which we shall designate the telegraph company, contends that under certain acts of Congress the roads of the railroad company and all other railroads in the United States are made post roads, and that by the act of July 24, 1866, the telegraph company has the right to construct, maintain, and operate lines of telegraph along said roads upon the payment of compensation to the railroad company. In other words, the contention is that by the act of 1866 the telegraph company is given the power of eminent domain to acquire the right to occupy with its telegraph lines the rights of way of the railroad company.
A summary of the bill is as follows: The telegraph company is a New York corpora
Argued October 19, 20, 1904. Decided De- tion; the railroad company is a Pennsyl
cember 12, 1904.
vania corporation. The New Jersey Railroad & Canal Company was incorporated N WRIT OF CERTIORARI to the under the laws of New Jersey, and is the
0 United States Circuit Court of Appeals owner of a railroad extending from Jersey
for the Third Circuit to review a case pend- City, in the state of New Jersey, to the Deling in that court on an appeal from a final aware river at the city of Trenton, in said decree of the Circuit Court for the District state, with certain branches, which the bill of New Jersey dismissing a bill to enjoin describes. The railroad company is the ownany interference with the use by the West-er of a line of railroad extending from the ern Union Telegraph Company of railway city of Philadelphia to the city of Pittsrights of way for telegraph purposes. burg, in the state of Pennsylvania, and in Affirmed. Alsopossession and control of the railroads of
the New Jersey Railroad & Canal Company | also agreed to transmit the messages of the in New Jersey, under a lease or leases for a railroad company at a compensation which period of 999 years from the 1st of July, was stated. 1871. By the laws of New Jersey the said railroads were created and made and are now public highways, and hence are subject to occupation and use of telegraph companies under the provisions and conditions of the act of Congress of July 24, 1866.
The telegraph company was organized in 1851, and began then to construct and has constructed and acquired a continuous system of telegraph lines, which extends through all of the states and territories of the United States, and connects with telegraph lines in the Dominion of Canada, and with lines also in the Republic of Mexico and South American Republics, and with and by submarine cables with the systems of all telegraph lines of foreign countries.
The system operated directly by the telegraph company consists of over 192,000 miles of poles and cables, and over 900,000 miles of wire; and an important part of the system and connected with its main office in New York city, and with other lines leading to the important cities of the West, is the lines of telegraph over and along the lines of railway operated by the railroad company, connecting Jersey City with Philadelphia, and connecting with other lines of the system.
The provisions for the termination of the agreement and in the event of its termination are as follows:
"Thirteenth. This agreement is to continue in force for and during the term of twenty years from its date, and shall be binding upon the respective companies, their successors and assigns, and neither party shall have the right to assign the whole, or any part hereof, without the consent of the other, given in writing.
"Fifteenth. If any monthly payment here. in provided for be not made within sixty days after it shall have become due, and shall have been demanded by written notice, delivered to the treasurer, or an executive officer of the party in default, or if any other covenant herein made shall not, after sixty days' written notice of default and demand made by either party in the manner herein provided, be fulfilled by the other party, the contract may, at the option of the party demanding such fulfilment, be rescinded, and such rescission shall not relieve the party in default from liability for any amount due, or for damages for nonfulfil ment of such covenant or of any other covenant.
"Sixteenth. If no new agreement be made by the parties hereto, the telegraph company shall, at the termination of this contract, or at any time hereafter, upon receiving written notice from the railroad company, remove, within six months from the receipt of said notice, all of its poles and wires, and leave the property of the railroad company in good condition and free from the encumbrance thereof to the satisfaction of the general manager or other proper officer of the railroad company, and if not so removed the railroad company may remove them at the expense of the telegraph company: Pro
The lines of telegraph along the railways in New Jersey were originally constructed by the American Telegraph Company, a corporation of the state of New Jersey, with the consent of, or under contracts and arrangement with the railway company then owning the said lines of railway, and were constructed more than forty years ago; and since the 20th of September, 1881, the telegraph lines over the right of way of said railroads have been maintained and operated and compensation paid therefor under the provisions of a contract between the telegraph company and the railroad company. The contract granted to the telegraph com-vided, however, That the payment agreed to pany the right to place, maintain, and use upon the line of the right of way of the railroad company, and of the railroads owned, operated, or leased by it, a single line of telegraph poles (in certain cases two were authorized), with the privilege of erecting and maintaining thereon such number of wires as the telegraph company might from time to time elect, said lines to be located and placed under the direction of an officer of the railroad company.
The telegraph company agreed to pay annually for the privileges granted the sum of $75,000, in monthly instalments of $6,250, and to deliver to the railroad company certain poles and wire, which were then on certain of their roads. The telegraph company
be made by the telegraph company to the
"Any easement or right of way heretofore acquired by the telegraph company upon any of the roads embraced in this agreement, either directly by contract or by assignment of contracts or agreements made by other companies with the railroad company, or with any of the companies whose roads or property are embraced in the schedule hereto attached, is hereby relinquished and aban
The agreement was carried out and the payments made as provided, the last being made on the 20th of June, 1902.
doned, and the rights and easements of the | Company," and that the contract between telegraph company upon the right of way of the companies had terminated under its said railroad company shall be such only as terms on the 20th of September, 1901, and are granted by this agreement, and shall the notice to the telegraph company to recease with its termination." move its poles had been given in accordance with the provisions of the contract. A willingness to discuss any temporary arrangement which might be necessary during the time allowed for the removal of the poles of the telegraph company was expressed. A somewhat lengthy reply was made, in which the telegraph company claimed that since some of the contracts referred to by the railroad company were perpetual in their terms, or ran during the life of the parties, they could not be terminated by one party without the consent of the other; asserted a right, under the laws of Congress and the laws and Constitution of the state of Penn
On the 14th of May, 1902, the railroad company notified the telegraph company in writing to remove its poles, wires, and other property from the right of way and property of the railroad company and of the other companies mentioned in the agreement, within six months from the 1st day of June, 1902. The notice stated that in default of compliance the railroad company would itself cause such poles, wires, and other property of the telegraph company to be removed from the right of way at the ex-sylvania, to maintain and operate its lines pense of the latter company.
It is alleged in the bill that, by reason of the facts set forth, and by reason of the receipt of payments after the 21st of September, 1901, and after the notice of removal, the agreement was continued in force, and that the railroad company had no right, notwithstanding the notice of May 14, 1902, to remove or cause to be removed from the line of its railways the poles, wires, and telegraph property of the telegraph company at the end of six months from the 1st day of June, 1902.
of telegraph on the railroad company's roads, subject only, at most, to make a fair and reasonable compensation for such right, which it offered to pay, and requested, if the railroad company declined to contract further with it, a meeting for the purpose of agreeing upon the amount of such compensation, or to submit the matter to arbitration. The railroad company replied that the meeting requested would be useless, as the telegraph company asserted rights upon the lines of the railroad company which could not be conceded. It was stated in the It is also alleged that the lines of tele- reply that the railroad company had agreed graph have been maintained and operated and contracted with the Postal Telegraph over the lines of railway without interfer- Cable Company covering the railroads ining with the ordinary use and operation cluded in the contract with the telegraph thereof, or the ordinary travel thereon, and, company, and that the Postal Telegraph as now located, maintained, and operated, Cable Company would immediately comcan be continued so as not to interfere with mence transacting a commercial telegraph the future operation and maintenance of the business at the stations of the railroad comsaid railways, or the ordinary travel upon pany. The railroad company offered to perthem, subject only to such slight changes of mit the telegraph company to do business some of the poles of said lines as may be in- at the railroad stations until September 30 cident to the construction of additional next ensuing (1902); and for the purpose tracks upon said right of way, or shifting of avoiding unnecessary loss to the telegraph the tracks already existing on said railways. company, incident to the removal of its May 20, 1902, the president and general poles, the railroad company expressed a manager of the telegraph company, in a let-willingness to purchase, at a fair valuation, ter addressed to the president of the railroad company, acknowledged receipt of the It is alleged in the bill that the notice notice of removal of May 14, and stated that given to the telegraph company to remove its he understood that negotiations had been in poles from the railroads, and the refusal of progress between the officers of the respec- the railroad company to negotiate further tive companies for a renewal of the contract with the telegraph company, were not inof September 20, 1881, and declared that he duced from any compulsion or necessity to would be glad to take up the matter ac- use the space occupied by the telegraph tively either in New York or in Philadel- lines, but that the purpose of the railroad phia, at the convenience of the president of company is to place upon the lines of railthe railroad company. The following day way telegraph lines to be owned or used by the president of the railway company re- another telegraph company; and it is alplied, stating that none of the companies leged that the lines of the telegraph comnamed "desires to renew or extend its con-pany will not interfere with the ordinary tract with the Western Union Telegraph travel and use of the railways.
such of the lines as it could make use of.
The acts of Congress hereinafter mentioned and set out are referred to in the bill, and a full compliance therewith alleged, whereby, it is further alleged, the telegraph company became and is entitled to maintain its lines on the railroads of the railroad company upon paying just compensation, the payment of which was offered. The prayer is that the court order and decree the amount of compensation to be paid by the telegraph company, or, if the court order compensation to be ascertained at law, it then be decreed that upon payment of such compensation a perpetual injunction issue.
The directors of the telegraph company ac- | telegraph company now organized, or which cepted the act of July 24, 1866, and filed an may hereafter be organized under the laws acceptance with the Postmaster General of of any state in this Union, shall have the the United States June 8, 1867. right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States: Provided, That such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption, through which its said lines of telegraph may be located, as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.
A preliminary injunction was ordered. 120 Fed. 981. It was reversed by the circuit court of appeals. 59 C. C. A. 113, 123 Fed. 33.
A controversy ensued upon the form of the decree. The circuit court of appeals simply reversed the order of the circuit court granting a preliminary injunction. The telegraph company moved that the decree be modified so as to direct the dismissal of the bill. The motion was refused, and the telegraph company took an appeal to this court. Subsequently the circuit court sua sponte entered an order dismissing the bill, and the telegraph company appealed therefrom to the circuit court of appeals. The case was then removed to this court by certiorari.
Messrs. H. D. Estabrook, Rush Taggart, John F. Dillon, and Richard Vliet Lindabury for the Western Union Telegraph Company.
Mr. John G. Johnson for the railroad company.
Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court:
By an act of Congress approved July 7, 1838 [5 Stat. at L. 271, chap. 172] and by subsequent acts (March 3, 1853, 10 Stat. at L. 255, chap. 146; Rev. Stat. § 3964, U. S. Comp. Stat. 1901, p. 2707; June 8, 1872 [17 Stat. at L. 283, chap. 335,]) railroads within the limits of the United States were made post routes or roads.
By act of March 1, 1884, it is provided "that all public roads and highways, while kept up and maintained as such, are hereby declared to be post routes." 23 Stat. at L. 3, chap. 9, U. S. Comp. Stat. 1901, p. 2708. The act of 1866 is as follows:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any
"Sec. 2. And be it further enacted, That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster General.
"Sec. 3. And be it further enacted, That the rights and privileges hereby granted shall not be transferred by any company acting under this act, to any other corporation, association, or person: Provided, however, That the United States may at any time after the expiration of five years from the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected.
"Sec. 4. And be it further enacted, That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance, with the Postmaster General, of the restrictions and obligations required by this act."
The construction of this act is the fundamental question in the case. The telegraph company contends that the necessary impli
of February, 1873, the legislature of Florida passed an act, which was amended in 1874, authorizing the last-named company to construct and maintain a telegraph line along its railroad, and to connect with lines in and out of the state. This was in the territory embraced by the exclusive grant to the Pensacola Telegraph Company.
cation from the provisions of the act is that | Louisville Railroad Company. On the 14th telegraph companies may enter and appropriate for their poles and lines a part of the rights of way of railroads in invitum upon paying just compensation. In other words, that the act invests telegraph companies with the right of eminent domain. The railroad company denies this construction, and asserts that the act gives the consent of the government to telegraph companies to construct lines through its public domain and over and along its military and post roads, which are not the property of private corporations, and across navigable streams and waters. The act gives no right, the railroad company contends, to appropriate private property, but is an exercise by Congress of the national power over interstate commerce to secure telegraph companies from "hostile state legislation or contracts violative of an announced public policy." In other words, the contention of the railroad company is that, after the act of 1866 was passed, it "became impossible for the states, by any legislation, to exclude telegraph companies from the post roads." The contentions of the parties are opposed, therefore, only as to the degree of right conferred by the act. It is asserted by one party, and unqualifiedly admitted by the other, that Congress has power to grant the power of eminent domain to corporations organized for national purposes, and the arguments of the parties are addressed only to the considerations which serve to determine the intention of Congress. Both parties also claim authority for their respective contentions.
1. The act of 1866 came before this court for consideration over twenty-five years ago, in Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708. The language of the court defining the rights conferred by the act has recently been repeated and sanctioned in Western U. Teleg. Co. v. Ann Arbor R. Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867. In both cases the judgment of the court was adverse to the rights claimed under that act by the telegraph company in the case at bar. A review of those cases, therefore, and a consideration of the arguments directed against them and in support of them will constitute the most appropriate discussion of the questions now presented, and apply immediately to their solution the authority of this court. In Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708, the legislature of Florida in 1866 granted to the Pensacola Telegraph Company "the sole and exclusive privilege and right" of maintaining and operating lines of telegraph through certain counties of the state. In 1872 the property of the Alabama & Florida Railroad Company was transferred to the Pensacola &
On the 24th of June, 1874, the Pensacola & Louisville Railroad Company granted to the Western Union Telegraph Company the right to erect a telegraph line upon its right of way, and transferred to it all the rights and privileges conferred by the act of February, 1873, and 1874. The Western Union Company immediately commenced the erection of the line, but before its completion the Pensacola Telegraph Company filed a bill to enjoin the work, on account of the alleged exclusive right of that company under its charter. Upon the hearing a decree was passed dismissing the bill, and an appeal was taken to this court. The Western Union Telegraph Company had accepted the act of 1866, and claimed to erect and maintain a telegraph line under its agreement with the Pensacola & Louisville Railroad Company, and under the provisions of that act. The case, therefore, presented an issue between rights asserted under a statute of Florida and rights given and protected by the act of 1866. The issue was important. The act of 1866 was presented for the first time for interpretation, and upon it depended not only the private rights of the contending companies, but the more serious conflict of powers derived from the national and state governments. The questions, therefore, which bore on these issues called for, and, it is evident from the opinion of the court, received, careful attention.
The first of these questions was whether the act of 1866 was a grant to telegraph companies of portions of the public domain and of rights in the public domain, or a grant of rights having a broader field of exercise,-a grant of rights having operation and to be exercised throughout the whole of the United States. There was a marked difference in the rights contended for, and they depended upon different powers. In the public domain the government was proprietor as well as sovereign, elsewhere only sovereign, and on its powers as sovereign there were limitations, arising not only from the rights of the states, but arising from the ownership of private property and the necessity of a grant of eminent domain to appropriate it. These limitations were of consequence in fixing exactly the rights conferred by the act of 1866, and were regarded by the court in its construction of that act.
The court declared, through Chief Justice