ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF KENTUCKY.
MR JUSTICE McKENNA delivered the opinion of the court.
Plaintiff in error, herein called the Telegraph Company, brought this proceeding to condemn an easement upon the right of way of defendant in error, herein called the Railroad Company, in exercise of a right conferred by a Kentucky statute of 1898 (Ky. Stats., § 4679c).*fn1
The purpose is to condemn as a right under the sanction of the statute so much of the right of way of the Railroad Company as was occupied at the time of suit by the Telegraph Company under a contract with the Railroad Company, which was about to expire.
After pleadings in addition to the petition and answer, the case was tried to a jury, which returned a verdict fixing the compensation and damages at $500,000. The verdict was received and entered and it was adjudged by the court that the Telegraph Company have the right it petitioned for.
A new trial was ordered, and the court reserved to itself the decision of the necessity of the easement, and whether, if adjudged, it would "interfere with the ordinary use by" the Railroad Company "of its right of way, or with the ordinary travel and traffic on the railroad." Both questions were ultimately resolved in favor of the Telegraph Company and a jury having been duly impaneled, and instructed by the court, assessed the damages and compensation to be paid at five thousand dollars.
It was then adjudged that the Telegraph Company should have the right of way prayed for. There were specific details of the manner of acquisition and use, and explicit description of the location, with provisions for changes in location according to the necessities of the Railroad Company.
On March 8, 1916, the Telegraph Company paid into the court the amount of the award and costs.
The Railroad Company prosecuted error to the Circuit Court of Appeals. The court after an elaborate consideration of the case said that it inferred "from the record (the specific question has not been argued) that there are comparatively small fractions of the desired right of way as to which it may be reasonably claimed that the interference with the railroad use is too serious to permit condemnation." It was intimated, however, that "an award
of damages" might "meet the case", but that it might be that another telegraph line could not be so placed as not to substantially obstruct the use by the Railroad Company of its right of way for some railroad purpose. The court, therefore, concluded that the verdict of the jury and the judgment entered thereon must be set aside, and the case remanded for new trial upon the question of amount of compensation, and for such further hearing and decision upon the question of the forbidden interference in specific places as the opinion indicated might be open. 249 Fed. 385. As we construe the decision there was a reversal not only on the question of damages but on the question of the interference by the easement petitioned for with the use by the railroad of its right ...