112 U.S. 306

5 S.Ct. 168

28 L.Ed. 746


November 24, 1884.

W. A. Gunter and H. C. Semple, for motion.

Gaylord B. Clark, in opposition.



Sections 1930, 1931, 1932, of the Code of Alabama, give telegraph companies incorporated by other states a 'right of way over the lands, franchises, and easements of other persons and corporations, and the right to erect poles and to establish offices, upon making just compensation, as now provided by law.' Sections 3580 to 3600, inclusive, prescribe the mode in which such a company may appropriate private property within the state for its uses. Application must be made therefor by petition to the probate court or to the circuit court of the proper county, both of which courts are invested with jurisdiction for that purpose. The proceedings in the court after the filing of the petition are to be in rem, and must 'conform as nearly as may be, except as herein otherwise provided, to the proceedings in rem in the admiralty courts, and be conducted according to the rules of such courts so far as practicable.' Section 3581. Provision is them made for notice of the filing of the petition to the owner of the property (section 3583) and for the impaneling of a jury, 'who, under the direction of the judge, shall well inquire, and true assessment make, of the damages and compensation which the owner * * * shall be entitled to have for the appropriation, * * *; and the assessment of compensation for any right of way shall be made irrespective of any benefit from any improvement proposed by the petitioner.' Section 3586. 'The owner * * * may intervene in the cause for his interest therein, and evidence may be offered on either side; but no delay in the assessment to be made by the jury shall be caused by any controversy or evidence in respect to the title or ownership of the land, or of any part thereof.' Section 3587. 'The verdict * * * shall be immediately entered in proper form upon the minutes of the court, to be kept for such causes, and the amount thereof for each parcel shall constitute the compensation to be paid therefor, as hereinafter directed, before the appropriation thereof shall be made by the petitioner.' Section 3589. It is specially made the duty of the court to speed the cause. Section 3590. 'An appeal to correct errors of law only may be had, if applied for within three months after the assessment, to either the circuit court of the same county or the supreme court; * * * but no appeal shall, during the pendency of it, prevent or hinder the petitioner from occupying the land involved therein, and proceeding to work thereon; but the petitioner, before doing so, shall pay into the court, for the person or persons entitled thereto, the amount of damages and compensation by the jury therefor assessed.' Section 3593. The amount assessed may be paid to the person entitled thereto, or to the clerk of the court. Section 3594.


The Southern Telegraph Company, a New York corporation, being desirous of erecting a line of telegraph from Montgomery, Alabama, by way of Selma to Meridian, in the state of Mississippi, filed in the probate court of Montgomery county, Alabama, an application for the proper proceedings under the Code to enable it to acquire the right of way for that purpose along a line of railroad in Alabama operated by the East Tennessee, Virginia & Georgia Railroad Company from Selma to the Mississippi state line. Upon this application being made the necessary notices were served on the railroad company to appear on the tenth of April, 1884, and a jury was summoned for an inquiry into the amount of compensation to be paid the company for the appropriation sought. On the day named the railroad company intervened for its interest, and showed cause against the appropriation, and averred in its intervention that the value of the property to be appropriated was $12,000, and that this was the proper measure of the compensation and damages it was entitled to if the prayer of the petition should be allowed. On the same day the railroad company filed in the probate court a petition for the removal of the cause to the circuit court of the United States for the Middle district of Alabama, on the ground that the value of the matter in dispute exceeded the sum of $500, and the telegraph company was a citizen of New York, and the railroad company a citizen of Tennessee. Under this petition a removal was effected, and a jury impaneled in the circuit court of the United States 'to inquire, and true assessment make, of the damages and compensation' the railroad company was entitled to have for the appropriation. The compensation was assessed by the jury at $500, and this amount, as well as the costs, was paid to the clerk of the court. Thereupon a judgment was entered that the telegraph company have and enjoy 'the rights, ways, and easements claimed in the petition.' From that judgment this writ of error was brought. The telegraph company now moves (1) to dismiss the writ, because the value of the matter in dispute does not exceed $5,000, and, if that motion is not granted, then (2) that the supersedeas herein may be modified so as to allow it to occupy the right of way involved in the proceedings, and to work thereon pending this writ of error.


The value of the matter in dispute in this court is the difference between the amount of compensation claimed by the railroad company on its intervention and the amount assessed by the jury. Hilton v. Dickinson, 108 U. S. 165; S. C. 2 SUP. CT. REP. 424. There is nothing in the record to show that the alleged value of the property is not the true measure of the compensation to be assessed. As this amount is $12,000, and the jury allowed only $500, it follows that the value of the matter in dispute is sufficient to give us jurisdiction. This is a proceeding under the statute of Alabama to ascertain the amount of compensation to be paid the railroad company for the appropriation of its property to the uses of the telegraph company. That is the single question to be settled. The remedy is statutory only, and every court which takes jurisdiction for its enforcement is limited in its powers by the statute under which alone it can act. It must be assumed for all the purposes of the proceeding that the telegraph company has the right to make the appropriation, and that, as soon as just compensation is made, it may enter on the property and put up and work its lines. It is a proper exercise of leg islative power to provide a way in which the amount of compensation shall be ascertained where the parties are themselves unable to agree. In Alabama, this is to be done by a jury impaneled in a probate court or in a circuit court. The legislature might have made the action in these courts final, and not subject to review on appeal or writ of error. If that had been done, the assessment of the jury, when recorded in the proper court, would settle finally the amount of compensation to be paid for the appropriation, unless the assessment should be set aside for fraud, or other sufficient cause, in some appropriate independent proceeding instituted for that purpose. But it has been provided that an appeal may be taken 'to correct errors of law only,' the effect of which shall not be, however, to prevent the appropriating company from taking immediate possession and proceeding with its works on payment into court of the sum allowed by the jury.


The courts of the United States, on removal of the proceeding from the probate court, were clothed with no greater power in the premises than the courts of the state would have possessed if their jurisdiction had been preserved. It follows that, as an appeal from the probate court to the state circuit court, or to the supreme court, would not have operated to prevent the telegraph company from taking possession of the property appropriated, and erecting its wires pending the appeal, the supersedeas on a writ of error from this court to the circuit court of the United States should be limited in the same way. This provision of the statute is by no means an unusual one, and was intended to prevent delays in the progress of a public work while the parties were litigating in the higher courts as to the correctness of a preliminary assessment of compensation to be paid an owner of property taken for the public use according to the forms of law.


The motion to dismiss because the value of the matter in dispute does not exceed $5,000 is denied; but it is ordered that the supersedeas upon the writ of error from this court shall not, during the pendency of the writ, prevent or hinder the telegraph company from occupying the premises appropriated for its use, and proceeding to erect and operate its line of telegraph thereon, after it has paid into the circuit court, for the person or corporation entitled thereto, the amount of damages and compensation assessed by the jury impaneled in the circuit court.

The following state regulations pages link to this page.