Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1890-03-28
TELEGRAPH-P0LES.
uNorR WHAT CONDITIONS THEY
MAY BE PLACED IN PUBLIC ROADS.
A peoi.ion Rendered by the Supremc
Court in the New Kent Cases
Other Opinions.

In tho case Of tho Western Union Telo-
srsnh Company rs. Williams, on an appeal
,,om the Circuit Court of New Kent coun-
Is. the Supreme Court Of Appeals rendered
ar opinion yesterday Of far more than or
dinary Importance.
The controversy grew ont OF the claim OF
The telegraph company that it had right
under an act Of the General Assembly
uass ID in 1880 10 construct its line along
Tho public roads Of the State without re-
card 10 the property rights OF the abutting
landowners. The Court held that this
sci was unconstitutional and void because
n failed 10 provide compensation 20 such
landowners. and that Williams, whose
property rights were invaded by the COM
iany. had a right 10 an action of tresp ass
l. recover damages for trespass.
THK CLAIM MADE
Judge Lacy. who delivered an ablo and
exhaustive opinion, aft"r referring TO the
rullug Of the court below. said:
1T thus appears that the claim OF the
defendant Is that by reason Of the Act
OF Assembly % February, 1880. II was
authorized % construct It's telegraph
And wires along the line over which the
country roads runs without making any
compensation therefor. and that 10 mann
the right OF eminent domain thereon, take
and enjoy what belongs to another IN the
exercise of tho sovereign power, not only
without making any compensation there
for but without any formal proceedings
looking 81 the condemnation of this pro-
rcit, under any Of the forms Of law what
tocycr.
aft il - once conceded or anywisc estab-
lshcl that the land in question belongs 10
,,fotpftN - xrQa bic r,ri rafo DrOpeTty.
ls freehold. as entirely his own through
out an ~ its parts, az the shelter which
lo had erected around and over his hearth
Stone for his habtation and home. and as
entirely under the protection OF the laws
AGAINST intrusion as the hcarthstone itself
that these lands are the lands of the pain
IN. unless be has lost them 10y tho crea-
ton Of a road across them is undeniable-
indeed. is not denied. Does the creation
of public road through the land diycst
hm IT a foe IN the samey
WHAT MINOR SAYS.
Nr. Minor IN his Institutes, Volume l.,
page 100. SAYS.
% The public require merely the right Of
massage the freehold and all the profits Of
the soil (that is, trees, mines, &C. belonZ
fill 10 the proprietor from whom TIE
rcht Of passage was acquired. He may
therefore recover the freehold IN electment,
maintain an action of trespass for digging
thl ground" &c.
Tko learned Judge then cites many cases
IN this and other tates 10 sustain the con-
cIusiou of the Court on this point.
RIGHTS or THE PLAINTIFF.
Further on no SAYS: "nOwever. 1t is
claimed by the plaintiff in error that the
r..hts of the plaintiff are what we have
lcrp stated. and that the Commonwealth
las only the right TO use by going. Still his
r1sa ie good because his works are only
rso az the easement and constitute no
new taking. no additional servItude."
We viii now briefly consider this argu-
mcut.
mo- rirht Of the Commonwealth is to use
hr going along over. This is tue extent of
th, right. If anything more Is taken 1t j.
fn additional Eeryltudc, and Is taking of
f.n ur0pp.ty within the meaning OF the
Constitution. To take the whole subject,
tr4nd in fee Is taking, this however is
f.f meaning of the term only In limited
r.r-a and naTrowest sense of the word.
I'LL. constitutional provision which de-
cHras that property shall not be taken for
'ghhc use without lust compensation was
Intended 10 establish this principle beyond
legislative control. and II is not necessary
r'et the uropertv should be absolutely
taken in the sense Of completely taking II
?. bring a case within the protection of the
Constitution.
FSrrr1ED TO RKLEF.
What has been said is sufficient OF
itself 20 establish the right of the COM
plainaut 20 relief. for In order to Justify
IN defendant IN setting ~ the poles II -
necessary for 1t to show that It has ac-
ouire1 the right 10 do so either by con-
t.ut or condemnation from tho owners
o. the soil To dig up the soil,
.s e. dig up his soil. 10 cut down the
tr,as is to cut down his trees. 10 do
troy the fences il 10 destroy his
fences. 70 erect any structure, 10
a0ix any pole in and upon the land. ls to
take possession OF his land, and all OF these
acts necessarily interfere with his tree and
urobstructlye use OF ms property o.,
Ne think the instructions OF the circuit
Court were clearly right and there IS no
error therein
Tho case was argued for the telegraph
company bv Major Robert Stiles and
Judge Staples. and for tho landowner by
colonel ". W. Gordon aud Henry Il. Pol
lard. Esq. IL was a test case and pract-
cqllv settles about twenty-five cases pend
,-, in Now Kent county, and will probably
'eai 10 the institution of many more IN
other sections of the state where the tele-
crnuh and telephone companies have
..-.ctcd their lines along the public roads
under the Act of Assembly declared VOID
J r This decision.
Inlee Lewis delivered q dissenting
opinion, in which Judge Richardson con-
cuIcd.
OTHER CAsES DECIDED.
Gallagher against Rowan's Adminlstra-
fo- from the Circuit Court Of MlddleseX
county. Affirmed. Judge Lewis delivering
d. opinion.
SL.pp AGAINST The Commonwealth. From
'l. Circuit Court Of Rockingham county.
Affirmed, Judge Fauntleroy delivering the
Corcy's Administrator. &c., against
Moore. From the Circuit Court OF Rock
,neham county. Affirmed, Judge Richard
son delivering the opinion.
Hodrku against McVeigh. From the
Circuit Court of tho city of Alexandria.
Affirmed. Judge Hinton delivering opinion.
Petty against Frick Company. Petition
=. modify order denied.
Whrockmorton against Throckmorton;
tr-ued bv j. W. Foster for appellee, and
Colonel X. II. Lee for appellant, aud sub
N tted.
lRlSR-AWERlCAN MILITARY.