{ "id": 1491146, "name": "St. Louis, Iron Mountain & Southern Railway Company v. Batesville & Winerva Telephone Company", "name_abbreviation": "St. Louis, Iron Mountain & Southern Railway Co. v. Batesville & Winerva Telephone Co.", "decision_date": "1906-11-05", "docket_number": "", "first_page": "499", "last_page": "505", "citations": [ { "type": "official", "cite": "80 Ark. 499" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "59 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327722 ], "opinion_index": -1, "case_paths": [ "/ark/59/0215-01" ] }, { "cite": "41 Ark. 295", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896189 ], "opinion_index": -1, "case_paths": [ "/ark/41/0295-01" ] }, { "cite": "42 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724071 ], "opinion_index": -1, "case_paths": [ "/ark/42/0321-01" ] }, { "cite": "15 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728432 ], "opinion_index": -1, "case_paths": [ "/ark/15/0452-01" ] }, { "cite": "33 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724669 ], "opinion_index": -1, "case_paths": [ "/ark/33/0465-01" ] }, { "cite": "47 Ark. 543", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "37 Ark. 195", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870990 ], "opinion_index": -1, "case_paths": [ "/ark/37/0195-01" ] }, { "cite": "35 Ark. 391", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "54 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1320398 ], "opinion_index": -1, "case_paths": [ "/ark/54/0499-01" ] }, { "cite": "7 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727288 ], "opinion_index": -1, "case_paths": [ "/ark/7/0252-01" ] }, { "cite": "4 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728417 ], "opinion_index": -1, "case_paths": [ "/ark/4/0129-01" ] }, { "cite": "33 Ark. 893", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "91 la. 146", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2082639 ], "opinion_index": -1, "case_paths": [ "/iowa/91/0146-01" ] }, { "cite": "49 S. W. 99", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "174 U. S. 736", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "155 U. S. 446", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "20 Pick. 222", "category": "reporters:state", "reporter": "Pick.", "opinion_index": -1 }, { "cite": "96 U. S. 699", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3382875 ], "opinion_index": -1, "case_paths": [ "/us/96/0699-01" ] }, { "cite": "174 U. S. 728", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3606403 ], "opinion_index": 0, "case_paths": [ "/us/174/0728-01" ] }, { "cite": "155 U. S. 438", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3581170 ], "opinion_index": 0, "case_paths": [ "/us/155/0438-01" ] }, { "cite": "153 U. S. 586", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "51 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724228 ], "opinion_index": 0, "case_paths": [ "/ark/51/0491-01" ] }, { "cite": "69 Ark. 104", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720015 ], "opinion_index": 0, "case_paths": [ "/ark/69/0104-01" ] }, { "cite": "96 U. S. 699", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3382875 ], "opinion_index": 0, "case_paths": [ "/us/96/0699-01" ] } ], "analysis": { "cardinality": 712, "char_count": 14573, "ocr_confidence": 0.695, "pagerank": { "raw": 3.941809922813582e-07, "percentile": 0.9034625184711541 }, "sha256": "59ef47b89614baf76ff75ee6edf30a3b4102f2040e14fa7c3a2fe23f18469c6b", "simhash": "1:99680da01668bfc2", "word_count": 2506 }, "last_updated": "2023-07-14T18:02:24.457794+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis, Iron Mountain & Southern Railway Company v. Batesville & Winerva Telephone Company." ], "opinions": [ { "text": "Hill, C. J.\n1. This was an action by the telephone company against the railroad company for removal by the latter of' thirteen miles of telegraph line from the railroad right of way. The Reporter will state the issues and facts.\nThe verdict and special finding fix the fact that the telephone line-was constructed before the railroad company had definitely located its line, and the further fact that the telephone line was not interfering with the proper and safe operation of the railroad, and was not a nuisance. These declarations are against the weight of the evidence, but have substantial evidence to sustain them, and hence can not be disturbed here. This takes from the case many questions presented on the instructions and as to the evidence.\nThis situation is presented, accepting the verdict as sustained by. evidence: A telephone line is lawfully constructed; it obtains right of way over private land by verbal consent of the owners and along a highway under authority granted by section 2934, Kirby\u2019s Digest. Subsequently a railroad is constructed along the way occupied by the telephone line, and it acquires its right of way by purchase and conveyance from the landowners and the county roads occupied by it were vacated (accepting a version most favorable to the appellant). The telephone line is constructed and maintained so as not to render dangerous the operation of the railroad, and not to interfere therewith, and was not a nuisance along the highway or right of way. Can the railroad company, after repeated demands upon the telephone company to remove its line from its right of way, remove the telephone line from the right of way, and thereby destroy its utility?\nConcede, without deciding, that the telephone company was a mere licensee, and that the sale of the land containing its line revoked the license for its being there and the vacation of the county roads terminated its rights there, and from .this viewpoint examine the situation of the parties.\nThe statutes expressly authorize a telephone company to enter a railroad right of way and survey, locate and lay out its line, being liable, however, for damages; and further authorize the condemnation of its way over a railroad right of way if it fails to agree upon its way by consent, contract or agreement. Kirby\u2019s Digest, \u00a7 \u00a7 2934-2936. The statutes further give a property owner damages against a corporation authorized to appropriate private property when it does so without first paying therefor. Kirby\u2019s Digest, \u00a7 \u00a7 2903-2905.\nIn McKennon v. St. Louis, I. M. & So. Ry. Co., 69 Ark. 104, the court held that the owner of land wrongfully appropriated for a railroad may have prevented such wrongful taking by injunction; but if he has not prevented it, and the railroad does take his land for its way without condemning, then he is remitted to his action for damages, and can not recover his land by ejectment. If the railroad could be- ejected by process at law, certainly the landowner could not forcibly eject and remove the railroad from the land. Exactly the same reasons apply in this case which applied in that one. The same statutes govern here which govern there; and if the statutory remedy for damages was exclusive there, it is necessarily exclusive here. While not mentioned in that case as a reason for the rule against ejecting a railroad company, it is a reason for it that public utilities must not be destroyed when a person has stood by and seen them constructed. Reichert v. St. Louis & S. F. Ry. Co., 51 Ark. 491. The same principle would govern here.\nA telephone line is a public utility (Joyce on Electric Dines, \u00a7 275) ; and its public importance is recognized by clothing it with the power of eminent domain, and giving it the free use of the State\u2019s highways. Kirby\u2019s Digest, \u00a7 \u00a7 2934-2936, 2937 et seq. Therefore it follows that the railroad company, taking the view of the law most favorable to it under the evidence accredited by the jury, was not authorized to remove the line of telephone from its right of way, and therefore it was liable for damages for so doing. The instructions sent this issue to the jury; and while they are not as clear as might be, yet the court fails to find prejudicial error in them.\n2. The court submitted to the jury this question: \u201cDo you find that the act of cutting the poles and wires of the plaintiff-telephone company by the defendant was done wilfully and intentionally?\u201d The jury answered, \u201cYes.\u201d The court gave judgment for double the amount of damages found as the actual damages. This was done pursuant to sec. 1899, Kirby\u2019s Digest, which makes it a misdemeanor to wilfully and intentionally destroy, injure or obstruct any telegraph or telephone line, and which adds to the penalty therein provided, \u201cand pay to the owners of said line double the amount of all damages sustained thereby.\u201d\nThe court did not instruct the jury as to the meaning of the words \u201cwilfully and intentionally,\u201d as used in the statute, and hence their finding can have no weight unless the words are to be taken literal^. This is a criminal statute, and the words mean more than a mere doing voluntarily -or knowingly-jhe act in question. The use of the term \u201cwillful,\u201d and in this case almost its synonym, \u201cintentional,\u201d in a criminal or penal statute \u201cimplies knowledge and a preference to do wrong.\u201d They mean in such statutes, \u201cnot merely voluntarily, but with a bad purpose.\u201d \u201cAn evil intent without justifiable excuse.\u201d \u201cDoing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit to do it.\u201d Felton v. United States, 96 U. S. 699; Evans v. United States, 153 U. S. 586; Potter v. United States, 155 U. S. 438; Spurr v. United States, 174 U. S. 728.\nThese cases and the authorities therein reviewed conclusively settle that there is no place in this case for an invocation of this criminal statute. The weight of the evidence is decidedly that the telephone line was a hindrance and a menace to the safe operation of the road; and if that were true, the appellant was right in removing it. The jury has found that is not true, and it has the testimony of one witness to that effect, and on that question of fact its verdict is conclusive; but this question does not go to the matter decided by the jury, but goes to the good faith or wantonness of the appellant, a question not submitted to the jury. There is no evidence here to submit this issue to the jury. The appellant was right in its position if the telephone line was a nuisance and a menace to its operation. The jury has said on some substantial evidence that it was not, and therefore it is settled that the railroad made a mistake in removing the line, and hence must pay for it; but this is far from proving the bad intent and evil motive necessary to convict it under this criminal statute. It was an error of the court to assess double damages.\nJudgment reversed so far as it awards double damages, and affirmed as. to the actual damages found by the jury.", "type": "majority", "author": "Hill, C. J." } ], "attorneys": [ "B. S. Johnson, for appellant.", "John B. McCaleb, and Bradshaw, Rhoton & Helm, for appellee." ], "corrections": "", "head_matter": "St. Louis, Iron Mountain & Southern Railway Company v. Batesville & Winerva Telephone Company.\nOpinion delivered November 5, 1906.\n1. Telephone company \u2014 destruction of line \u2014 damages.\u2014Where a telephone company has without objection constructed its line along a railroad track so as not to interfere with the operation of the railroad, the railroad company is not authorized to remove such line from its \u25a0right-of-way, and is liable for damages for so doing. (Page 502.)\n2. Same \u2014 liability for double damages. \u2014 Kirby\u2019s Digest, \u00a7 1899, which \u25a0 makes it a misdemeanor \u201cwilfully and intentionally\u201d to destroy any telephone line, and provides that a person guilty of such offense shall \u201cpay to the owners of said line double the amount of all damages sustained thereby,\u201d implies not merely a voluntary act, but one done with an evil purpose. Thus, where a railroad company unnecessarily destroyed a telephone line along its track, believing that it was a menace to the operation of its trains when it was not, the evil intent was lacking which would render the railroad company liable for double damages. (Page 504.)\nAppeal from Izard Circuit Court; John W. Meeks, Judge;\nreversed in part.\nThe Batesville & Winerva Telephone Company sued the St. Louis, Iron Mountain & Southern Railway Company and the Western Union Telegraph Company in tort. The first count alleged that plaintiff was engaged in the telephone business, owning and operating a telephone line in Independence, Izard and Baxter counties, Arkansas, running along the east bank of White River and upon its own right of way; \u201cthat in 1901 and 1902, while laying and constructing the said railway and telegraph line of defendants, the said defendants unlawfully, wilfully and intentionally cut down, tore down and destroyed a large number of telephones poles and wires where same touched the right of way of said railway company.\u201d A second count charged \u201cthat in the latter part of 1903 defendants wilfully and intentionally cut down, dug up and removed all of plaintiff\u2019s poles and wires that, were located on defendant\u2019s right of way in the counties of Baxter and Izard running from Cotter to Penter\u2019s Bluff in Independence County.\u201d The total damages asked were $17,000.\nThe joint answer of the defendants denied (1) that the plaintiff\u2019s poles or wires were destroyed or torn down by either of them in 1901 or 1902, or that plaintiff was damaged in any sum by the acts of defendants; that if any damage was done to plaintiff in 1901 or 1902 it was done by the White River Railway Company, its contractors and subcontractors, who were independent contractors for whose acts defendants were not responsible. (2) Defendant, admitted that during 1903 defendant railway company purchased and secured all the rights and privileges of the White River Railway Company, and that, having purchased an exclusive right of way, it removed certain telephone poles and wires of plaintiff from its right of way, after giving due notice to plaintiff to remove same. It further alleged that plaintiff\u2019s poles were erected over the White River Railway Company\u2019s right of way, and that by purchase defendant railway company became entitled to exclusive use of same; that plaintiff\u2019s poles and wiires crossed the railway track in many places, and was unskill fully constructed, was a menace to the safe operation of said railway, to 'such an extent that it interfered with the operation of the railway.\nFarris, president of plaintiff telephone company, testified that plaintiff owned the telephone line erected between Penter\u2019s Bluff and Sylamore on the summer of 1901 before the railway was constructed. The public road was followed closely, and verbal consent was given to lay the line over private property. In December, 1903, the plaintiff\u2019s poles and wires were removed from defendant\u2019s right of way, thereby destroying the use of the line. Thirteen miles were taken down, and plaintiff abandoned the route. Plaintiff was damaged at the rate of $40 per mile, or $520. The loss of rents about $145, with cost of rebuilding, amounted to $957- The line was constructed high above the track, was never low enough to strike a brakeman on a box car. Witness admitted that plaintiff\u2019s wires crossed the railroad track in a number of places.\nThe court submitted the following questions to the jury, viz.: (1) \u201cDo you find that the act of cutting the poles and wires of the plaintiff telephone company by the defendants was done wilfully and intentionally?\u201d (2) \u201cDo you find that the railroad company cut the poles and wires in good faith, believing that they \u25a0endangered the safety of the employees of the railroad?\u201d\nThe first question was answered by the jury in the affirmative, and the second in the negative. The jury found the actual damages to be $600. On motion of plaintiff the court rendered judgment for $1200, double damages, against defendants.\nDefendants have appealed.\nB. S. Johnson, for appellant.\nT. ^The verdict was contrary to the evidence.\n2. Plaintiff was not entitled to double damages. The act, i \u00a7 1899, Kirby\u2019s Digest, is a criminal statute, and the words \u201cwilfully and intentionally,\u201d as used in this statute, were intended to mean more than simply the doing of a thing voluntarily and knowingly. 96 U. S. 699; 20 Pick. 222; 1 Bishop, Crim. Daw, \u00a7 428; 155 U. S. 446; 174 U. S. 736; 49 S. W. 99; 30 Am. & Eng. Enc. Law, 529; 91 la. 146.\n3. The court erred in refusing to permit the defendant to introduce in evidence the records of Izard County vacating certain roads, and therein permitting the plaintiff to introduce parol testimony controverting those records and to show that they were void. 33 Ark. 893; 4 Ark. 129; 7 Ark. 252.\nJohn B. McCaleb, and Bradshaw, Rhoton & Helm, for appellee.\n1. The verdict is sustained by the evidence. It is in proof that the appellee\u2019s telephone line was in operation before appellant had any right of way. There is no proof that appellant filed a preliminary survey, or a profile with the county clerk as required by law. Kirby\u2019s Digest, \u00a7 \u00a7 6548, 2942, 6569. Before a railroad company can construct its line of road, it must procure a right-of-way, either by contract or by condemnation proceedings. If appellee\u2019s right of way lay along what appellant desired,' it was its duty to condemn that also. Ib.- \u00a7 2939. The law gives telephone companies a' right of way along that of railway companies. Ib. \u00a7 \u00a7 2934-36. In any event the telephone company had an easement over the lands where its line ran, and this was subject to condemnation. 15 Cyc. 607 and 699.\n2. Plaintiff was entitled to double damages when the jury found that the defendant wilfully and intentionally caused the damage. Kirby\u2019s Digest, \u00a7 1899.\nPlaintiff was in possession when appellant bought, and the latter took subject to plaintiff\u2019s rights. 54 Ark. 499; 35 Ark. 391; 37 Ark. 195; 47 Ark. 543; 33 Ark. 465. If the trespass is an aggravated one, or the injury to property be done wilfully or wantonly, or be attended with such gross negligence as to manifest a careless disregard of consequences, the jury may award exemplary damages. 15 Ark. 452; 42 Ark. 321; 41 Ark. 295; 59 Ark. 215; Watson on Damages, \u00a7 \u00a7 718-19. Such damages could be recovered in this case if it were not for the limitation to double damages contained in the statute.\n3. No copies of the alleged records of the county court have been brought into the bill of exceptions. The presumption is that the ruling of the trial court in the matters complained of was correct." }, "file_name": "0499-01", "first_page_order": 521, "last_page_order": 527 }