The controversy between the parties to this case opened in the probate court of Crawford county in August, 1899, and it has been carried on with unremitting vigor through that and the inter-, vening courts, and its various phases have been elaborately presented to this court in briefs:
Some of the arguments, and a large amount of statistical and historical matter found in the almost unlimited brief for plaintiff in error, are wholly superfluous, and we are asked to pass upon numerous questions which- counsel discuss therein, many of which are no longer material, and tend only to obscure, if not to lose sight of, the necessarily vital points found in the record.
Sifting the wheat from the chaff of the case, the subject of our labor may be divided into two branches-: (1) The proceedings had on the petition of The Ohio Postal Telegraph-Cable Co. against the Railway Company in the probate court for the purpose of appropriation to its use of part of its right-of-way, and which is called the preliminary hearing. (2) The questions arising on the trial before the .jury for the assessment of compensation to the railway company.
(1) It is-forcibly pressed upon our attention, by counsel for defendant in error, that by reason of the *315neglect of plaintiff in error, the proceedings at the preliminary hearing are not before us, because its motion for a new trial was not filed witbin tbe statutory time in sucb cases, and that tbe bill of exceptions purporting to contain tbe preliminary proceedings was not prepared and allowed witbin tbe time prescribed by statute. And we are cited to tbe record of tbe court of common pleas, where we find that for tbe above reasons, that court struck from tbe files tbe bill of exceptions and dismissed tbe petition in error filed therewith by tbe railway company. And we further find that tbe circuit court affirmed tbe court of common pleas in so doing. This is complained of in this court as erroneous in case No. 7778 between tbe same parties, and which is a close companion of this case, and as sucb will be decided presently. However, we do not regard that controversy as very important now, and we may and do ignore tbe bill of exceptions as being properly stricken from that case; and yet we have remaining in tbe record a vital question as to tbe jurisdiction acquired by tbe probate court, and this is exhibited in tbe certified transcript of that court, which was a necessary part of tbe record in each of tbe reviewing courts, and also of tbe record in this court. This is properly so, in order that we may have a continuous chain of tbe controversy from its inception in August, 1899, down to the last verdict and judgment of tbe trial court in March, 1901.
An issue was made up between tbe defendant in error and tbe railway company, when tbe latter denied each and every allegation of tbe petition asking tbe appropriation.
Tbe petition was more than tbe ordinary petition *316to appropriate the property of another, and it was so necessarily, because the statute under which the petitioner was proceeding required averments of fact not usual, or required in other cases of appropriation. After fully describing what ground it desired to use and what it expected to place and erect on the premises desired, and other facts, to give the court jurisdiction ,to hear the case, it is alleged: “Plaintiff says that the erection of said telegraph line upon said right-of-way of said railway company, will not in any material degree interfere with the practical or usual and ordinary uses to which said railway company is authorized to put such right-of-way; but, that if this Honorable Court, nevertheless, shall be satisfied that the construction of said line, in any place, will interfere in any material degree with such use of the right-of-way by the defendant railway company, this plaintiff hereby offers and stands ready at all- times to construct and erect the line at such other places and in such manner as this Honorable Court shall direct and require.”
This language as a part of the petition would naturally occur to the pleader on the reading of the .statute under which the telegraph cable company was proceeding.
The act authorizing the steps taken by defendant in error was passed March 31, 1865, and so far as we know judicially, has had a silent and harmless existence until it was invoked in this case. By Section 3456, Revised Statutes, a magnetic telegraph company may enter upon any land whether owned by an individual or corporation, for the purpose of a preliminary survey and examination, with a view to locating and erecting its lines, and that it “may *317appropriate so much thereof as may be 'deemed necessary for the erection and maintenance of its telegraph poles, piers, abutments, wires and other necessary fixtures, and for stations, and the right-of-way over such lands and adjacent lands sufficient to enable it to construct and repair its lines.”
The next section, 3157, limits the right of occupation by the telegraph company, so that it may not interfere with buildings and enclosures belonging to the landowner.
It is provided in section 3158: “When lands sought to be appropriated for'lines of magnetic telegraph, are held by a corporation incorporated under any law of this state, whether held by purchase, or in virtue of any appropriation authorized by its charter or by any law of this state, the right of the company to appropriate such lands shall be limited to such use of the same as shall not, in any material degree interfere with the practical uses to which the company is authorized to put such lands under its charter * * *.”
Because of this express limitation on the right to appropriate the lands of an Ohio corporation, it was incumbent upon the telegraph cable company to plead, in its petition, a proposed condition which would be within the statutory limitation, and it so pleads, as we have quoted from that petition. Therefore, when the railway company denied, as it did, each and every allegation in the petition, the averment quoted was put in issue, and the burden of proof was upon the petitioner to satisfy the probate court of the truth of that, as well as other jurisdictional averments. It is not difficult to see how important the inquiry would be on this subject of probable conflicting uses. In this case the property to be used is the *318right-of-way of a railroad company, holding an Ohio' charter, as the petition avers, and it devolved upon the petitioner to satisfy the probate court that the use and occupancy it desired, would not “m any material degree interfere with the practical uses to which the company is authorised to put such lands under its charterThis recognizes the well settled rule that property devoted to one use cannot be subjected to another use, unless it be consistent with the first.
The briefs of counsel are silent on this subject, and we cannot find in them any statement tending to show whether or not any evidence was introduced on the preliminary hearing touching this question, and, unless we look into the forbidden bill of ex-céptions, we cannot know with absolute certainty. But we have a right to assume that no such testimony was offered or received, because the record of the probate court is entirely silent and contains no finding upon the subject; and in this, we think that record is fatally defective.
Section 3459, Revised Statutes, provides that: “The right of such company to use lands held by a railroad company, for the permanent structures of said telegraph, shall be limited to the land which lies within five feet of the outer limits of the right-of-way of the railroad company, where it is practicable to erect the line within those limits; when the company seeks to appropriate lands that lie beyond those limits, its petition must set forth the facts, showing that it is impracticable to erect such lines within said limits * * *. The probate court shall in all instances determine, if it be controverted by the railroad company, whether the erection of the line at the place or places designated, will in any *319material degree, interfere with the practical uses to which such railroad company is authorised to put such lands, and if the court is satisfied that it will so interfere, it shall reject the petition, or require the structure to be erected .at such other place or places, as the court shall direct * *
In the case at bar the telegraph company desired to appropriate to its nse the, outer five feet of the right-of-way of the railroad company, and it alleged that such use would not interfere in any material degree with the practical uses of the right-of-way by the railroad company. This was controverted by the latter company by answer in the probate court. On the controversy, the above statutes make it the duty of that court to determine as a jurisdictional fact, whether or not the desired use and occupancy, will interfere in any material degree with the practical uses the railroad company has a right to make of its right-of-way. The court had no discretion on the subject, because the statute is mandatory. It is a wise provision and is intended to ascertain, to some extent at least, in advance of calling of a jury to assess compensation, whether the desired use will be compatible with the rights of the railroad company.
How does the record stand on this point? As seen from the entry copied in the statement of this case, the probate court made no finding on the issue joined as to the conflicting use. The findings are such only as are made in the ordinary case for the appropriation of property, as follows: “Now on this sixteenth day of January, A. D. 1900, the court being fully advised in the premises, do find that the plaintiff is a corporation, and has a legal right to make the appropriation of the property described in the peti*320tion as prayed for; that the plaintiff is unable to agree with the owners of the property as to the amount of compensation to be paid therefor, and that there is a necessity for such appropriation as prayed for in the petition; and the court proceeding as directed by statute, orders and directs that a jury be drawn,” etc.
These findings are. such as are contemplated' by Section 6420, Revised Statutes, which is a part of the general act for appropriation of property. But the telegraph company, in order to avail itself of that act, to enter upon and appropriate the use of a part of a right-of-way from another corporation, must, bring itself within the provisions of the law, which authorize such a proceeding, and, plead and prove the additional jurisdictional fact, upon which the court can authorize the appropriation. The facts were plead, but no hearing was had upon them, as we assume, for the court did not pass upon them.
We regard the finding required in section 3459, supra, as essentially jurisdictional, and that it would he the chief stone in the foundation upon which the telegraph company must base its right to institute and conduct the inquiry as to compensation to the OAvner; and where this chief stone, prescribed by statute to he laid at the preliminary hearing is absent, the superstructure will not withstand attack, especially when made in a direct proceeding.
Adopting the above course of reasoning, we are of opinion that the probate court did not obtain jurisdiction to order the appropriation and make the order of an inquiry of compensation before a jury. If the petitioner made no proof under S ection 3458, Revised Statutes, supra, the petition should have been rejected.
*3212. What we have said under the first branch of the case, might well terminate our labor; but as the reversal will take the case back to the probate court, for a new preliminary hearing on the petition and answer, it is best to dispose of the grave contention concerning the true measure of damages to be adopted for the guidance of the jury, if the case should reach that stage and require, as it would, an inquiry and assessment of compensation.
The record of the trial on this subject in the lower court discloses many vain efforts on the part of the railroad company to introduce -some evidence of the threatened invasion of its rights and its injurious consequences. It succeeded in qualifying some of its witnesses to give testimony as to the value of its right-of-way, with and without the incumbrance of the telegraph company, but they were not allowed to state what the difference in value would be. Various other forms of inquiry were resorted to in order to reach the measure of compensation, but none were satisfactory to the court, and in the end there was no evidence admitted upon which the jury could pass. Therefore the verdict of the jury was rendered practically without any evidence, except it be the charge of the court.
Some of the evidence offered was properly excluded, but in all the rulings of the court upon the constant controversies over the introduction of testimony, the court was content with sustaining objections, and at no time, did it undertake to lay down any rule by which counsel might be guided. And after the close of all vain efforts, the court, after reading the petition and answer, gave the following and only charge:
“The court charges you that the damages sus*322tained by the railroad company by such use of said five-foot strip by the plaintiff, the telegraph company, can only be nominal damages. Nominal damages in this case .may he anywhere from $100 to $500.
“Your verdict will be for the defendant for such damages as you find it has sustained within the above limits.”
The jury took the suggestion of the court and returned a verdict for $500.
In our judgment the instruction is not the law of the case, nor is it even a faithful remembrance of the meaning of “nominal damages.”
It is said that the trial court obtained the above standard of compensation from the following and similar cases cited in brief of defendant in error: Railroad Co. v. Postal Tel. Cable Co. (Tenn.), 41 L. R. A., 403; case between same parties before supreme court of Alabama, 24 Southern Reporter, 408; Postal Tel. Cable Co. of Idaho v. Railroad Co., 104 Fed. Rep., 623; case between same parties, 111 Fed. Rep., 842; Postal Tel. Cable Co. of Utah v. Railroad Co., 65 Pacific Rep., 735; Railroad Co. v. Postal Tel. Co., 173 Ill., 508; Railroad Co. v. Chicago, 166 U. S., 226.
Wej'have examined those cases and the facts upon which’ they stand, and the rule held in most of them is entirely different from the instruction given by the trial court in this case. True, in two of the cases, the judges deciding them use the term “nominal damages” as the standard of recovery, but it was a conclusion from the facts of the case in hand, and not as a rule of law to govern in other cases. The two cases referred to are Railroad Co. v. Postal Tel. Cable Co., 41 L. R. A., 403; same parties, 24 Southern Reporter, 408. But they quote and approve the rule *323adopted in the other cases,- which we will briefly notice.
In Postal Tel. Cable Co. of Idaho v. Railroad Co., 104 Fed. Rep., 623, supra, Beatty, District Judge, held: “The compensation which a telegraph company is required to pay for the right to construct and maintain its line upon the right-of-way of a railroad company, is the amount of decrease in the value of the use of such right-of-way,. for railroad purposes which will result.”
That case went to the circuit court of appeals, where it was affirmed, and is found in 111 Fed. Rep., 842, supra. Other questions than compensation were involved on which the district 'court was affirmed, and the court of appeals would not reverse alone because it was claimed the amount of compensation was inadequate, that question being peculiarly one for the trial court, rather than a court of error.
In Postal Tel. Cable Co. of Utah v. Railroad Co., 65 Pac. Rep., 735, supra, the court found as a fact that the part of right-of-way sought to be condemned by the telegraph company, was idle property and not then used for any purpose by the railroad company, and hence the opinion as to nominal damages.
In Railroad Co. v. The Postal Tel. Co., 173 Ill., 508, supra, the court favored the rule as stated in 13 syl.: “The measure of damages where a telegraph company condemns a right-of-way for its use along and upon a railroad right-of-way, is the value of the land actually taken for placing the poles, and the extent to which the value of the use of the portions between the poles and under the wires, for railroad purposes, is diminished by their use by the telegraph company.”
In Railroad Co. v. Chicago, supra, the city of *324Chicago instituted proceedings to open and extend one of its public streets over the tracks of the railroad, and one of the controversies was over the measure of compensation and damages. The case reached the Supreme Court of the United States, as found in 166 U. S., 266.
In the consideration of the amount of compensatidn allowed to the railroad company in the state courts, the Supreme Court of the United States decided, that it could not examine the evidence to determine whether the verdict was inadequate or not, inasmuch as its review was confined to fundamental questions of law. As to the lawful measure of compensation on the facts of that case, the court held the following proposition: “In a proceeding in a state court in Illinois, to ascertain the compensation due a railroad company, arising from the opening of a street across its tracks — the land as such not being taken, and the railroad not being interfered with only so far as the right to its exclusive enjoyment for purposes of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a 'street — the measure of compensation is the amount of decrease in the value of its use for railroad purposes caused by its use for purposes of a street, the use for the purposes of a street being exercised jointly with the company for railroad. purposes.”
Other cases cited for defendant in error, are not materially different, and we will not review them. Enough is seen in all of them to determine, that the competent evidence of the injury and inconvenience to be incurred by creating the second easement, are to be the basis of just compensation, and unless the facts show that no substantial damage will be sus*325tained by the railroad company, tlie court is not warranted in charging the jury, that merely nominal damages can be recovered.
The petition for the appropriation in this case detailed the size, height and character of poles to be erected on the right-of-way or the five-foot strip thereof, and the other fixtures to be placed along the line. Full inquiry was competent at the trial for compensation, to develop what the real situation would be when the telegraph company would have its line completed and in operation.
The width and character of the right-of-way of the railroad along the entire line to be so encumbered, is also competent, so that the jury might have fully as possible, what the new use by the telegraph company will be.
Of course, it will not and can not appropriate in fee simple any part of such right-of-way, nor abridge the right of the railroad company to the use of its entire right-of-way, except so far as it may be necessary for the new easement to be created and used for a line of telegraph; that is, to plant and erect poles, string the wires and make a complete line of telegraphic communication as detailed in the petition for appropriation, and the right to enter and go along the line to make needed improvements and repairs inside the foregoing limits.
Another observation in this connection should not be overlooked, and in this respect the statutes of this state may be unlike those of states from which above' cases have been taken.
Our general assembly has imposed on railroad companies certain duties in caring for and maintaining their rights-of-way, so that the public, and especially adjoining landowners may not suffer from *326fires which start on -railroad premises. Other restrictions are placed upon the use and condition of the right-of-way. Whatever these imposed obligations may be, we think they may be properly taken into account, inasmuch as the telegraph company does not assume them, nor are they imposed upon it by reason of its joint occupancy of a part of the right-of-way.
It seems quite reasonable, that when a telegraph company, by virtue of the statute, condemns to its use a part of the premises of one of the trunk line railroads of the country for the distance appearing in this case, that more than mere nominal damages or compensation may be involved.
From the best light we have upon the law applicable to this case, we believe the measure of compensation should be the amount which the right-of-way of the railroad company for railroad purposes, is diminished in value by the proposed easement of the telegraph company; or, in other words, the amount of the decrease in the value of the use of such right-of-way for railroad purposes, which will be caused by the appropriation of an easement on the same for the purpose of erecting and maintaining a telegraph line reon.
c may be said that this rule should be modified ' r limited in its application, because of the provision the statute authorizing the appropriation, where the railroad company, at any future time, may notify the telegraph company that it needs for railroad purposes, a part or all of the ground occupied by it, in which event the telegraph company is required to yield possession and locate elsewhere. We think there should be no such modification for that reason.
*327The appropriating company, desiring to avail itself of a statute containing such a provision, assumes all the risks of being ousted in whole or in part, and ventures upon gaining possession and holding it against the will of the railroad' company. The latter does not welcome the new companion, and, it may, in course of time, be asked to give way to the needs of the railroad. But it may not comply, and litigation will follow to secure full possession to the owner of the right-of-way. Of the probability of these sequences, the telegraph company has full knowledge, and it can not insist that such probable results should mitigate the compensation to be paid for the right of appropriation.
In conclusion we find that the trial court erred in ‘the charge to the jury, and the circuit court erred in affirming the judgment of the former.
The judgments of the circuit court, the court of common pleas, and the probate court are reversed, and the cause is remanded to the probate court, for a new preliminary hearing on the petition and answer thereto, and for further proceedings according to law.
Judgments reversed.
Burket, C. J., Spear, Davis, Shauok and Crew, JJ., concur.