Opinion
19406, 19407.
SUBMITTED JUNE 13, 1956.
DECIDED SEPTEMBER 7, 1956.
Injunction. Before Judge Brooke. Fannin Superior Court. March 31, 1956.
A. J. Henderson, T. H. Crawford, Marion T. Pope, Jr., for plaintiff in error.
William Butt, Herman J. Spence, contra.
1. The contract between the Tennessee Electric Power Company and the Tennessee Valley Authority did not convey any interest in poles erected and rights of way acquired subsequently to the execution of the contract.
2. The essentials of estoppel were neither alleged nor proved in the present case.
3. The contention that the plaintiff was barred by laches is without merit.
4. The testimony did not show any approval by the Administrator of the Rural Electrification Administration of the proposed contract between the parties, and it never became a completed contract.
5. The contention that the ruling on the plaintiff's special demurrers to the defendants' answer became "the law of the case" is without merit.
SUBMITTED JUNE 13, 1956 — DECIDED SEPTEMBER 7, 1956.
The plaintiff, an electric membership corporation engaged in the business of transmitting and selling electric energy, filed a petition to enjoin the defendants, doing business as a partnership under the name and style of Blue Ridge Telephone Company, from maintaining their telephone lines upon certain poles owned by the plaintiff for the transmission of electric energy, and to enjoin the defendants from extending their lines to other rights of way and poles of the plaintiff. It was alleged: The Tennessee Electric Power Company was the common grantor of the rights, properties, and facilities of the plaintiff and of the defendants. On May 12, 1939, the rights, properties, and facilities later acquired by the plaintiff were conveyed by the Tennessee Electric Power Company to the Tennessee Valley Authority. At that time the power company owned all of the rights, properties, and facilities known as the Blue Ridge Commercial Telephone System. In the contract of May 12, 1939, the power company reserved certain rights set forth in paragraph 7 (G) as follows: "Seller reserves the appropriate rights and easements to maintain all existing attachments of the Blue Ridge Commercial Telephone System to electric poles which are to be conveyed to purchasers hereunder, and to install additional telephone circuits on such poles to the extent that space is available therefor when expansion of the commercial telephone system makes this desirable, and the additional right to utilize other electric poles not now carrying telephone attachments for commercial telephone circuits when and as expansion of the Blue Ridge Telephone System makes this desirable, to the extent that space is available upon such electric poles therefor; such rights including the right to install, operate, maintain, repair and replace said telephone attachments." Subsequently, all rights and properties of the "Blue Ridge Commercial Telephone System" were conveyed by the power company to J. C. Thomason, and by him to the defendants. Between the dates of May 12, 1941, and November 12, 1951, J. C. Thomason, illegally and without authority, attached his telephone lines to 108 power poles belonging to the plaintiff. Since November 21, 1951, the defendants have continued to keep and maintain their telephone wires illegally attached to 108 power poles of the plaintiff, and without right, title, or authority, have attached or caused to be attached their telephone wires to 237 additional power poles of the plaintiff. None of the power poles described in the attached Exhibits A and B were in existence on the date of the contract between the Tennessee Electric Power Company and the Tennessee Valley Authority. "Besides keeping, using, and maintaining their telephone wires" illegally attached to power poles of the plaintiff, intermediate telephone poles have been erected by the defendants upon the plaintiff's rights of way since November 21, 1951, without right, title, or authority. The telephone wires used on the power poles of the plaintiff are below its electric lines, and in keeping its lines in repair the plaintiff's employees must climb through the telephone wires in order to reach its electric lines, which hampers and impedes its employees in their work. The plaintiff's linesmen are compelled to repair electric lines charged with electricity, and there is a much greater danger of its employees coming in contact with electric lines when compelled to climb through telephone lines of the defendants. There is the added danger of its employees falling or slipping while attempting to climb through the defendants' telephone wires. By the erection of intermediate poles the defendants keep their telephone wires much tighter than the electric wires of the plaintiff, and when the plaintiff's electric wires sag from ice, snow, or other causes, there is great danger that they will come in contact with the telephone wires of the defendants. The acts of trespass of the defendants will greatly damage the plaintiff, will hamper and impede the plaintiff's transmission of electric energy to its customers, and its damages will be irreparable in their nature.
The prayers were that the defendants be permanently enjoined from further maintaining the illegal attachment of their telephone wires to the power lines of the plaintiff, and from maintaining the intermediate telephone poles erected by the defendants, and for other relief.
In their answer the defendants alleged: It was the intention of the Tennessee Electric Power Company to separately convey the right to distribute electric energy and the right to operate a telephone business. Such joint use and operation was being carried on by separate owners at the time the plaintiff obtained its rights, and there has been no dispute between the separate owners as to the right of the telephone system to use the electric poles of the plaintiff. There was some disagreement between the officials of the plaintiff and the defendants as to the manner in which the defendants were exercising their rights; and in order to avoid any dispute, the parties entered into a new contract on May 22, 1952. After the execution of the contract, and with full knowledge of the plaintiff, the defendants extended their lines upon 181 poles of the plaintiff. The reservations contained in paragraph 7 (G) of the original contract were carried out by the predecessors in title of the plaintiff and the defendants in the joint use of electric poles, and the defendants relied upon the former interpretation of their rights as shown in the contract attached to their answer. The contract attached shows that the defendants were entitled to do the acts complained of in the petition. Because of the conduct of the plaintiff in permitting the acts it now complains of, it is estopped to dispute the rights and title of the defendants.
Exhibit A to the defendants' answer recites that it is an agreement and contract between the plaintiff and the defendants; that the defendants shall have the right to make certain attachments to the poles of the plaintiff and shall be required to pay certain rentals; that the attachment of wires on all poles shall at all times be in conformity with accepted methods and conform to the requirements of the National Electric Safety Code. Other provisions as to the method of operation are specifically outlined. It is signed, "Tri-State Electric Cooperative by J. M. Eaton, Jr., as its president, and J. R. Daves, as its secretary"; and by the defendants, "doing business as the Blue Ridge Telephone Company." Attached to the alleged contract is a copy of a resolution adopted at a regular meeting resolution adopted at a regular meeting of the stockholders of the plaintiff, and it is provided therein in part as follows: "that one conformed copy of said executed contract be delivered to the proper officials of the Rural Electrification Administration in Washington, D.C. for its consideration and approval, if found to be satisfactory."
Upon the trial of the cause the jury returned a verdict for the plaintiff. The defendants' motion for new trial, as amended, was denied, and they except to this judgment, and to the judgment overruling their demurrers to the petition.
The parties will be referred to in the opinion as they appeared in the trial court.
1. The trial judge properly construed the "expansion" provision of the contract between the Tennessee Electric Power Company and the Tennessee Valley Authority, entered into on May 12, 1939, (and under which the defendants claim as successors in title), as limited to such "expansion" of the defendants' telephone lines as might be effectuated on existing electric poles of the Authority. The contention of the defendants that the "expansion" provision extended to poles not in existence, and to rights of way not owned or acquired by the Authority at the time of the contract, can not be sustained. The possibility that at some indefinite time in the future the Authority, or its successors in title, might acquire rights of way and might erect poles of a character suitable for the additional use of supporting telephone lines of the defendants is too remote a contingency to be the subject matter of a valid sale. "A bare contingency or possibility may not be the subject of sale." Code § 96-102; J. S. Noyes Co. v. Jenkins, 55 Ga. 586, 587; Watson v. Adams, 103 Ga. 733, 736 ( 30 S.E. 577); Forsyth Manufacturing Co. v. Castlen, 112 Ga. 199, 201 ( 37 S.E. 485, 81 Am. St. R. 28); Mattox v. Deadwyler, 130 Ga. 461, 465 ( 60 S.E. 1066); Ryman v. Kennedy, 141 Ga. 75, 77 ( 80 S.E. 551); Harris v. McDonald, 152 Ga. 18, 27 ( 108 S.E. 448); McDaniel v. Haslett, 183 Ga. 458, 462 ( 188 S.E. 718); Yancey v. Grafton, 197 Ga. 117, 121 ( 27 S.E.2d 857).
2. Estoppel by conduct under Code §§ 38-115 and 38-116 was not involved under the pleadings and evidence of the parties. "In order to constitute estoppel by conduct, there must concur, first, a false representation or concealment of facts; second, it must be within the knowledge of the party making the one or concealing the other; third, the person affected thereby must be ignorant of the truth; fourth, the person seeking to influence the conduct of the other must act intentionally for that purpose; and, fifth, persons complaining shall have been induced to act by reason of such conduct of the other." Tinsley v. Rice, 105 Ga. 285, 290 ( 31 S.E. 174); Bennett v. Davis, 201 Ga. 58, 63 ( 39 S.E.2d 3); Harris v. Abney, 208 Ga. 518, 519 ( 67 S.E.2d 724). The pleadings and the evidence demanded a finding that the defendants and their immediate predecessor in title, J. C. Thomason, relied upon the "expansion" provision of the contract referred to in the first division of this opinion. No acts of the plaintiff are shown to have induced the defendants, or Thomason, to insist that the "expansion" provision was a valid contract extending to rights of way to be acquired by the plaintiff in the future and to its lines subsequently constructed.
3. Under the "expansion" provisions of the contract between the Tennessee Power Company and the Tennessee Valley Authority, the defendants had neither title nor color of title to the rights of way and lines of the plaintiff acquired subsequently to the execution of the contract. The plaintiff did not seek affirmative equitable relief to establish its title to its properties. "`The doctrine of stale demands,' or laches as codified in § 3-712, `is a purely equitable one' and `is . . . not applicable to a complaint for the recovery of land.' City of Barnesville v. Stafford, 161 Ga. 592. . . Accordingly, as to the prayer for a recovery of the land, the petition showed no bar by prescriptive title or lapse of time against any plaintiff." Lathem v. Fowler, 192 Ga. 686, 693 ( 16 S.E.2d 591). "There is no law in this State which prevents the person holding the legal title to land from suing for and recovering it, as long as the legal title remains in him." Doris v. Story, 122 Ga. 611, 614 ( 50 S.E. 348); Fox v. Lofton, 185 Ga. 456 ( 195 S.E. 573); Fletcher v. Fletcher, 209 Ga. 184, 186 ( 71 S.E.2d 219).
4. It was not essential that there be any agreement between the parties to the effect that the validity of the proposed contract between the parties should depend upon approval by the Administrator of the Rural Electrification Administration. The record (independently of the resolution attached to the purported contract) conclusively establishes knowledge on the part of the defendants that the plaintiff was an electric cooperative association, and, as such, was a borrower from the Rural Electrification Administration. Under the law, this knowledge on the part of the defendants is controlling on the rights of the parties in so far as the purported contract is concerned.
The Rural Electrification Administration Act provides in part: "No borrower of funds under sections 904 or 922 of this title shall, without the approval of the Administrator, sell or dispose of its property, rights, or franchises, acquired under the provisions of this chapter, until any loan obtained from the Rural Electrification Administration, including all interest and charges, shall have been repaid." 7 U.S.C.A. 553, § 907.
Under the above provision of the Rural Electrification Act (which is notice to all persons purporting to contract with a borrower from the R. E. A.), no contract affecting the property, rights, or franchises of a borrower from the R. E. A. is valid without consent and approval of the Administrator of the R. E. A. The contention that the plaintiff's evidence tending to show that the contract had not been approved was hearsay and inadmissible, if correct, shows no reversible error. Under the act of Congress creating the R. E. A., the purported contract between the parties was incomplete and inoperative until approved by the Administrator of the R. E. A. The burden of establishing the validity of the purported contract, based upon approval by the Administrator, was upon the defendants, since they were contending that it was, in fact, a completed contract.
5. The time for excepting to the adverse rulings on the plaintiff's special demurrers to the defendants' answer had not expired at the time of the trial. Code (Ann. Supp.) § 6-905; Ga. L. 1946, pp. 726, 738; Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 453. Apparently as a matter of precaution, the plaintiff by cross-bill excepted to the rulings on its special demurrers adverse to it, within the time provided by law. However, upon the trial of the cause, the trial judge, without the entry of any formal order, in effect modified his rulings on the plaintiff's special demurrers by the admission of certain testimony. The assignment of error that the court's ruling on the plaintiff's special demurrers became "the law of the case" is without merit.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed. All the Justices concur.