court:

Whitfield, J., delivered the opinion of the | of any other line to construct on the right of way of the railroad any competing telegraph The only question of importance in this line. In the case before us, a very case is, What is the true measure of damages nominal amount of the land constituting in cases of this character? In St. Louis & right of way is proposed to be taken, only C. R. Co. v. Postal Teleg. Co. 173 Ill. 508,- that part of it occupied by the posts, 175 a case almost identical with this, that court, feet apart, leaving the way for all other purin the course of an ably-reasoned opinion, poses unobstructed. It is really an easesaid: "The measure of damages therefore ment in an easement; a servitude, true, for suffered by the railroad company is not the which the company is entitled to some comvalue of the land embraced within the right pensation under the Constitution. The railof way between the poles and under the road company, however, holds its right of wires, but the measure of damages is the ex- way, so far as is made to appear, simply for tent to which the value of the use of such railroad purposes, and is restricted in its use spaces by the railroad company is diminished of the same for such purposes. Under this by the use of the same by the telegraph com- view of the estate that the railroad company pany for its purposes,"-citing Chicago, B. has in its right of way, it is difficult to see & Q. R. Co. v. Chicago, 149 Ill. 457, and 166 how the damages sustained by the road can U. S. 226, 41 L. ed. 979. Again, the court be anything more than nominal. Indeed, if says: "The spaces over which the wires are we might weigh advantages and disadvantstrung from pole to pole are not taken by ages, a competing line would naturally and the telegraph company. Such damage as the reasonably appear to be an advantage to the construction and operation of the telegraph railroad company. It has not been line cause to the spaces between the poles shown that the company holds the land as a the appellants are entitled to recover. The private individual, to devote it to any purtelegraph company does not acquire by the pose it pleases, or to sell it, at will, at the judgment of condemnation the fee to any por-highest price it will bring on the market. tion of the right of way. Any construction which holds that it does acquire the fee is bot sanctioned by the language of the act in relation to telegraph companies. The act does not confer the right to use the land condemned for any other purpose than for tele-market value of land by reason of its use as graph purposes. The company cannot take possession of it, or injure it, for any other purpose than to erect telegraph poles, and suspend wires upon them, and to maintain and repair the same. The company will have the right to enter upon that portion of the right of way which is between the telegraph poles and under its wires for the purpose of repairing its line. But the telegraph company acquires no right to exclude the railroad company from the use of the land. The owner-right of way,-the Supreme Court of the ship of the railroad companies remains as it was before, while the telegraph company merely acquires an easement upon what it condemns for the purpose of entering thereon in order to erect and repair the line." St. Louis & C. R. Co. v. Postul Teleg. Co. (1898) 173 Ill. 508.

And the supreme court of Alabama, in the case of Mobile & O. R. Co. v. Postal Teleg. Cable Co. (Ala.) 24 So. 408, appealed from the circuit court of Mobile county. JusLice Haralson speaking for the court, said: "This case is an appeal from the circuit court to review the proceedings of that court in the trial of the cause on appeal from the probate court, where they were instituted, for the condemnation of an easement in favor of the appellee company to construct and operate its line of telegraph over the right of way of appellant company. The case is here on appeal by the railroad company, but the leal party in interest, as reasonably appears from the proceedings, is the Western Union Telegraph Company, with which the railroad company has a contract for an exclusive line over its right of way; and under its contract said telegraph company may use the name of the railroad company to resist the attempt

|

The land constituting the right of way really has no market value so long as it is used for such purpose. It has been withdrawn, by the very uses of the company, from marketable land; and when there can be no

a part of an extensive business or enterprise, its value must be determined by the use to which it is applied, and necessarily not by any supposed market value it has. Illinois C. R. Co. v. Chicago, 141 Ill. 509; Chicago, B. & Q. R. Co. v. Chicago, 149 Ill. 457, 166 U. S. 226, 41 L. ed. 979; Lewis, Em. Dom. § 485. Commenting on the decision of the Illinois case last cited, which was a casc for the extension of a street across railroad tracks or

United States. in the case last cited, used language well adapted to the case in hand. They say: "The land, as such, was not tak en; the railroad company was not prevented from using it; and its use for all the purposes for which it was held by the railroad company was interfered with, only so far as its exclusive enjoyment for the purpose of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a street. The supreme court of Illinois well said "that the measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for purposes of a street, such use of a street being exercised jointly with the use of the companies for railroad purposes. In other words, the company is to be compensated for the diminution in its right to use its tracks, caused by the existence and use of the street."" The supreme court of Illinois held in that case that the trial court did not err in excluding evidence to show the general salable value of the land constituting the right of way included in the crossing, or its general value for other uses than that to which it was applied. The soundness of this principle was approved by the Federal

court, and it appears to be sustained by reason and authority. 149 Ill. 457, 166 U. S. 249, 41 L. ed. 989; Mobile & O. R. Co. v. Postal Teleg. Cable Co. 101 Tenn. 62, 41 L. R. A. 403, April term, 1898 (two cases tried and decided together)."

in this case that the use of the right of way and construction of the telegraph line will be any detriment or obstruction to the railroad, but, on the contrary, it is shown it would be a benefit and convenience. A telegraph line along a railroad is not only a convenience, In this case that court sustained a judg- but a necessity, and is very properly treated ment for nominal damages, and that court as a railroad appurtenance. A railroad comsaid: "This is simply a case where the rail-pany may therefore construct a telegraph road is not using the space occupied by the line along its right of way, or permit anothposts and wires, and when it cannot convey er to do so; but it acquires and can confer no it to another for any purpose, in which only exclusive right to do so. Western Union nominal damages arise." In that case nom- Teleg. Co. v. Baltimore & O. Teleg. Co. 19inal damages only were awarded to the rail- Fed. Rep. 660; Western Union Teleg. Co. v. road company in a condemnation proceeding Burlington & S. W. R. Co. 11 Fed. Rep. 1; by the telegraph company for the right to Western Union Teleg. Co. v. American U. construct, maintain, and operate its tele-Teleg. Co. 65 Ga. 160, 38 Am. Rep. 781; Pengraph lines along and upon the right of way sacola Teleg. Co. v. Western Union Teleg. Co. of the railroad. There were two causes at 96 U. S. 1, 24, 24 L. ed. 708, 715; 3 Am. & the same time before the court on appeal by Eng. Enc. Law, 1st ed. pp. 885, 886. Under the railroad company between the same par- this view of the estate and interest which ties, and involving the same question. Un- railroad companies have in their right of der the statutes of Tennessee, a separate con- way, it is difficult to see how the damages demnation proceeding was required by the sustained by the road can be anything but telegraph company in each circuit-court dis- nominal. It is said with much trict through which the road ran; hence earnestness, and with some degree of plausithere were two causes appealed from two sep-bility, that it would be unjust to allow a telarate circuit-court districts which were egraph company to plant its poles along the heard by the supreme court together. The right of way, when the railroad company had court said: "The cases are before us on ap-expended thousands of dollars to clear and peal by the railroad company, but the real party in interest is the Western Union Telegraph Company, a competing line, with which the railroad has a contract for an exclusive line over its right of way, and which has a right, under its contract, to use the name of the railroad company in any suit to resist the attempt of any competing line to construct any other line upon its right of way." Again, this court says: "It does not acquire any estate in fee. It only requires an easement or right of way, and this only for railroad purposes. While its right of way extends to a certain distance on each side of its track, it has no right to occupy the way beyond its track, cuts, and fills, or to such distance and to such extent as to maintain its track and operate its trains. It can only go beyond these limits for necessary railroad purposes. It cannot sell, transfer, encumber, or use its right of way, except as its necessities and convenience may demand for the proper operation of its road. It cannot license the appropriation of any part of such right of way to private business purposes nor to public purposes, except so far as needful and helpful to the operation of the road itself. Jones, Easements, § 383. Its rights of way can, therefore, have no market value, because it cannot be placed upon the market, either at private sale or public outery. A railroad company is entitled to have a right of way by process of condemnation, because it is a work of internal improvement,-a quasi public use. But it has been held that land already taken by the exercise of eminent domain for public use, and actually used for that purpose, may be taken by legislative authority for other public uses not inconsistent with or destructive to the former use. Mills, Em. Dom. § 45, and cases there cited. It is not insisted

keep it free of obstructions, and yet pay nothing for the privilege. But this view is more specious than sound, for the railroad must incur this expense for its own purposes, whether the telegraph line is there or not, and must keep its right of way clear of obstructions, whether it is occupied by a telegraph line or not, and there is no greater burden or expense because of the presence of the telegraph line. The learned trial judge in the Madison county case held: "The measure of damages to the defendant is the amount of decrease in the value of the use of the right of way for railroad purposes when it is jointly used for telegraph purposes.' This rule was, no doubt, adopted from the rule laid down by the Supreme Court of the United States in the case of Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 248, 41 L. ed. 988."

We approve the principles announced in these cases, except that we do not say that the damages are merely nominal. We adopt the rule as first above stated in St. Louis & C. R. Co. v. Postal Teleg. Co. 173 Ill., at page 534, to wit: "The measure of damages, therefore, suffered by the railroad company, is not the value of the land embraced within the right of way between the poles and under the wires, but the measure of damages is the extent to which the value of the use of such spaces by the railroad company is diminished by the use of the same by the telegraph company for its purposes.' This is the true measure of damages in cases of this character. In respect to the proposition that the railroad company might, in future, possibly change its route (whether with or without legislative permission), and, in the future, "use the lands for purposes other than a right of way," that this possible use should be taken into account as an element

of damages, Mr. Justice Harlan, speaking ments of damage, proper, respectively, in the for the United States Supreme Court, said two kinds of cases. It was proper to con(166 U. S., at page 249, 41 L. ed. 989): "Such sider the "adaptability" (p. 409) "of the a possibility was too remote and contingent lands for the purpose of a farm" in Patterto have been taken into account. While, as son's Case, because that was, under the law, held in Mississippi & R. River Boom Co. v. a use to which, as owner in fee, unrestrictedPatterson, 98 U. S. 403, 408, 25 L. ed. 206, ly, he could put it. So far as the contention 208, the general rule is that 'compensation is that the railroad company might, in the to be estimated by reference to the uses for future, conclude to lay other tracks or which the property is suitable, having regard side tracks, and that, if it did, the telto the existing business and wants of the egraph poles would be in the way, is community, or such as may be reasonably ex- concerned, it is enough to say that the pected in the immediate future,' it is well appellee agrees in such case to remove settled that mere possible or imaginary uses, such poles to such other point or points or the speculative schemes of its proprietor, on the said right of way adjacent thereto are to be excluded,"-citing the authorities. which shall be designated by said railroad This is undoubtedly the sound view. Again, company, upon reasonable notice, and at the Mr. Justice Harlan puts the point with expense of the telegraph company; and we great clearness in the same case at page 258, think, with the supreme court of Illinois 166 U. S., and page 992, 41 L. ed., saying: (173 Ill. 535), that this is a valid, enforcea"Compensation was awarded to the railroad ble stipulation. The exclusive contract becompany upon the basis of the value of the tween the railroad and the Western Union thing actually appropriated by the public, Telegraph Company was, of course, void as -the use of the company's right of way for in restraint of trade and as creating a moa street crossing, having regard to the pur- nopoly, as has been repeatedly held. Appelposes for which the land in question was ac- lant relies (as to the measure of damages) quired and held, and was always likely to be on Postal Teleg. Cable Co. v. Alabama & V. held. In the case of individual owners, they R. Co. 68 Miss. 314. It is not entirely clear were deprived of the entire use and enjoy- what rule is meant to be declared therein. ment of their property, while the railroad A single sentence covers all that is said. company was left in the possession and use There are no authorities cited, and there is of its property, for the purposes for which no discussion. It is to be remarked that the it was being used, and for which it was best law on this subject, applicable to damages adapted, subject only to the right of the pub- caused in this way by this modern agency, is lic to have a street across it. In this there of very recent development. The doctrine was no denial of the equal protection of the announced by Mr. Justice Harlan for the laws," etc. The doctrine of Mississippi & R. United States Supreme Court above, and of River Boom Co. v. Patterson, 98 U. S. 403, the supreme courts of Illinois, Tennessee, 25 L. ed. 206, has no application to this case. and Alabama, is undoubtedly the only corPatterson owned his island absolutely, to be rect view, and if the case of Postal Teleg. Caused or sold for any purpose he pleased. ble Co. v. Alabama & V. R. Co. 68 Miss. 314, His use of it was not limited, as is the use conflicts with what we have herein anof its right of way by a railroad. The dif-nounced, it is, to the extent of such conflict, ference in the nature and character of the hereby overruled. uses to which the property in the two cases may be put makes the difference in the ele

VIRGINIA SUPREME WAVERLY WATER FRONT IMPROVEMENT & DEVELOPMENT COMPANY et al., Appts.,

v.

E. V. WHITE et al.

(......Va.........)

Riparian rights, including the right to the soil between ordinary high and NOTE. Title to land between high and low water mark.

I. The rule in England.

II. The rule in the United States.
III. Conflicting rights of owner and public.
IV. What is shore.

V. Boundary of municipal corporations.

1. The rule in England.

Early authorities.

The law upon this subject is in a very unsat

The right result was reached in the court below, and the judgment is affirmed.

COURT OF APPEALS.

low water mark, as incident or арpurtenant to the adjacent land, pass in Virginia by virtue of the operation of the statutes extending the rights of individuals to low-water mark, although the conveyance is in terms made to "high-water mark," unless the deed manifests a clear intention to control the operation of the statutes.

(June 15, 1899.)

isfactory condition. The question seems not to have been of sufficient importance to get before the courts until well along into the seventeenth century, long after the titles to the lands adjoining the shores had been settled, and when decisions unqualifiedly in favor of the Crown might involve large individual loss. The consequence is that the judges have been unwilling to express opinions unless necessary, and the question can hardly be considered to be settled at the present time. There appears to be no definite evidence in the Domesday Book, which contains the record of taxable titles.

lots now owned by the appellants conveyed | Foster, 94 Va. 650; Code 1887, § 1339; those lots by a water boundary.