Appeal from the District Court of the United States for the Western District of Wisconsin.
Before EVANS and SPARKS, Circuit Judges, and BALTZELL, District Judge.
BALTZELL, District Judge.
This proceeding was begun by the United States of America (hereinafter referred to as the Government) for the purpose of condemning certain lands and easements in Buffalo county, Wis., to be used in the construction, maintenance, and operation of what is commonly known as Lock and Dam No. 4 in the Mississippi river.It is the intention and purpose of the Government to maintain at all times in the river at that place a nine-foot navigation channel, which calls for a flowage easement up to an elevation of 667 feet above the mean sea level datum, over, across, and through the property in question, as well as other property described in the condemnation petition. Commissioners were regularly appointed for the purpose of awarding damages to any landowner, and the owner of any easement or any property right thereby affected. Damages in the sum of $1,590 were awarded by such Commissioners to the appellant telephone company for the taking of an easement or property right which it asserted over certain lands taken by the Government in this proceeding. The Government appealed from such award to the District Court. A jury was waived, and the court filed special findings of fact from which it concluded "that the respondent's claim for compensation in these proceedings be and it is hereby disallowed, without costs." Judgment was accordingly entered, and the telephone company is now prosecuting this appeal.
There was entered into by and between the parties a stipulation as to certain facts, at the conclusion of which Mr. Gleason, attorney for appellant, stated, "I take it then, Mr. Wiprud, that under our stipulation that the only question involved in the case is the establishment of our property rights, and if we establish them, we are entitled to the $1590.00, and if we fail we are not." To which Mr. Wiprud, attorney for the Government, responded, "That is correct." The stipulation also provides that the sum of $1,590 is just compensation for the easement taken. By this stipulation the Government admits the existence of an easement, the value of which is not in dispute. The easement extends over the lands, the fee of which was owned by the persons named as grantors in the instruments executed to appellant prior to the time of its entry upon such lands. The question, therefore, for determination is whether or not appellant has a property right in the easement appropriated by the Government in this proceeding for which it is entitled to just compensation; if so, it is entitled to $1,590; if not, it is entitled to nothing.
A farmers' co-operative telephone company was originally organized more than thirty years ago for the purpose of supplying telephone communication between the subscribers for their mutual convenience and benefit. Poles were furnished by the farmers and much work in the construction of the line was originally done by them. About thirty years ago a corporation was organized, and a great deal of the stock was subscribed for and is now owned by the persons who constructed the original line. That corporation is still in existence and is the appellant in this case. The owners of the land on which the poles were placed, and over which the wires extended, gave their permission for the construction of the line, in writing, to the company, before such construction was commenced. A written form was prepared by a lawyer, and all permits were on the same form. The following permit was executed by one of the land owners over whose land a telephone line was afterwards constructed, and is a part of the easement in question:
"This indenture, made the 11th day of June, A.D. 1907, between Edward Truempler of the town of Alma in the county of Buffalo, in the state of Wisconsin, party of the first part, and The Tenney Telephone Company, a corporation duly organized under the laws of the state of Wisconsin, party of the second part,
"Witnesseth, that in consideration of the sum of one dollar, now paid to the said party of the first part by the party of the second part, the receipt whereof is hereby confessed and acknowledged, the said party of the first part hereby grants and conveys unto the said party of the second part and to its assigns and legal representatives and to its agents and servants full and free right and privilege, from time to time hereafter at its and their will and pleasure to go, return, pass and repass over the lines hereinafter described and to erect and maintain upon said lands telephone poles and string wires thereon for the purpose of operating and maintaining over said lands a line of telephone communication where said telephone line and poles are now, or hereafter may be located over said lands.
"The lands of the said parties of the first part above referred to are situated in Buffalo County, Wisconsin, and are described as follows: East half of the South West quarter, Sect. 25, Town 22, Range 13 West.
"In Witness Whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written.
"Edward Truempler [Seal.]
"In presence of Peter Wold."
(The italicized portion of the above represents handwritten insertions in an ...