Opinion
William Meyer, of Butte, Mont., for plaintiff.
Nolan & Donovan, of Butte, Mont., for defendants.
BOURQUIN, District Judge.
This case by complaint and proof on an order to show cause is one wherein plaintiff seeks to enjoin defendants from continued destruction of the former's interstate telegraph lines upon a railroad's right of way (an easement acquired by condemnation) wherein the railroad company and defendants appear to be cotenants in the fee, plaintiff having the railroad company's permit to place the former's wires on the latter's poles on said right of way. All parties hereto are citizens of Montana.
Plaintiff has complied with the federal Telegraphs on Post Roads Act (10 West's Comp. Stats. p. 12335), and claims the case is one arising under the Constitution and laws of the United States. Defendants' only claim is that the railroad company's permit gives plaintiff no right to occupy said right of way that they, cotenants in the fee, are bound to respect, that the issue involves only the local law of cotenancy and is not a case arising under the laws of the United States, and so move to dismiss the suit for want of jurisdiction.
This court has not jurisdiction unless the case arises 'under the laws of the United States. ' A case does not so arise unless it is apparent from the complaint that it involves a substantial dispute respecting the validity, construction, or effect of some federal law, upon the determination of which the result depends. Hull v. Burr, 234 U.S. 720, 34 Sup.Ct. 892, 58 L.Ed. 1557.
When the law involved has been settled by the Supreme Court, it no longer furnishes a basis for a claim that the case arises under the laws of the United States. Telegraph Co. v. Railway Co., 178 U.S. 244, 20 Sup.Ct. 867, 44 L.Ed. 1052.
By reason of both these rules, it is believed the instant case does not arise 'under the laws of the United States'; hence, no jurisdiction.
The federal act involved, so far as here material, is for the purpose of preventing states and their instrumentalities, as cities, from prohibiting telegraph companies doing business therein. It has nothing to do with the conduct of individuals, whether wrongdoers or otherwise, who hinder the companies' operations. The act confers no right upon such companies to occupy post roads in invitum.
The companies must secure leave from the owners of such roads, and their rights therein are not dependent upon nor measured by the said act, but by terms of the leave secured. Essex v. Telegraph Co., 239 U.S. 317, 36 Sup.Ct. 102, 60 L.Ed. 301; Telegraph Co. v. Richmond, 224 U.S. 169, 32 Sup.Ct. 449, 56 L.Ed. 710; Telegraph Co. v. Railway Co., supra. And see Pomona v. Telephone Co., 224 U.S. 345, 32 Sup.Ct. 477, 56 L.Ed. 788.
Page 756.
If the companies secure leave to occupy state or city post roads, any subsequent interference by state or city may make a case arising under the Constitution of the United States-- the contract or due process clauses-- and so within the jurisdiction of the federal courts. Illustrations are the first and last of the four cases last cited.
The instant case in principle is like Telegraph Co. v. Railway Co., supra, which determines that, not the construction or effect of said act, but that of the leave to occupy, controls the result.
That interstate commerce is involved, adds nothing to plaintiff's rights. See Water Co. v. McCarter, 209 U.S. 357, 28 Sup.Ct. 529, 52 L.Ed. 824, 14 Ann.Cas. 560.
It may be that plaintiff, by the railroad company licensed to use the right of way as the latter uses it, involving no exclusion of defendants as cotenants, has rights entitled to protection. But not the federal law, but the local law alone, determines the result. So is it, if defendants are not cotenants but only wrongdoers. Any remedy must be sought in the state courts.
The motion to dismiss is granted.