26 Kan. 669 | Kan. | 1881
The opinion of the court was delivered by
On the 24th day of March, 1881, the defendant company applied to the district judge for the appointment of three commissioners for the purpose of laying off and condemning certain lands and town lots in the city of Atchison, being the property of the plaintiff, which application being presented on said day, the district judge appointed certain commissioners in pursuance of the request
Two principal questions arise • the first is this: Years ago the defendant exercised the right of eminent domain, condemned land for its line of road and for terminal facilities at the city of Atchison, built depots, side-tracks, etc., at Atchison, and completed its entire line of road. Now the contention of plaintiff is, that defendant’s road being a completed road, and defendant having once exercised the right of eminent domain, its power in that respect is exhausted, and that without further legislative authority its right to take lands in inmiurn is lost. This question must be resolved by reference to the statutes; for, that the legislature can give to railroad corporations a right of eminent domain as continuous as their necessities, is not doubted. The sections of the statute providing for the exercise of this power are two in number— sections 81 and 87, pp. 230, 231, Compiled Laws of 1879. Section 81 reads:
“Any duly chartered and organized railway corporation may apply to the board of county commissioners of any county through which such corporation proposes to construct its road, to lay off, along the line of such proposed railroad, as located
Section 87 as it stood originally in the laws of 1868 simply provided for the appointment of commissioners by the district judge, who were to make the assessment instead of the county commissioners; otherwise, and so far as any question involved in this case is concerned, the section was similar to § 81. In 1870, the section was changed to read as follows:
“That any railway corporation, instead of applying to the board of county commissioners, as hereinbefore provided, or any person or persons through whose land or premises any railroad has been or is being constructed, may apply to the judge of the district court of the county through which any railroad is, or is to be built, for the appointment of three commissioners to make the appraisement and assessment of damages instead of the county commissioners; said commissioners shall be freeholders and residents of the county through which such railroad is, or is to be built.....Such commissioners shall be sworn to honestly and faithfully discharge their duties as¿ such commissioners, and they shall do and perform all things in the manner and under the same regulations and restrictions as are provided in case such duties were performed by the county commissioners; and the subsequent and other proceedings, including appeal, shall be done and performed in the same manner; and the railroad company shall pay all costs accruing under any application under this section.”
Now the argument of plaintiff is, that § 81 refers alone to a proposed, and not to a completed, railroad, and that in the first instance the corporation must condemn not only the land needed for its line of road, but also all that will be'necessary in the future for its terminal facilities; or, failing to do that,
On the other hand, it is contended that any limitation imposed by the phrase, “ proposed railroad,” in § 81, applies only to the mere line of road; that that section gives authority to condemn such land for side-tracks, depots, etc., as may be necessary, which implies that it is to be condemned when it is in fact necessary or deemed necessary, and therefore as often as it is deemed necessary; and that the true grammatical construction of this section makes a distinction between land for the right of way, and land for depots, etc. It is further contended, that while §87 as it originally stood simply provided for other commissioners than the county board, the amendment in 1870 enlarged the power of the corporation in respect to this matter of eminent domain, and gave to it both before and after the completion of its road the right to condemn lands. The language of the section reads, “ is, or is to be built,” and the right is given to the corporation, as well as to the land-owner, to apply for commissioners; and the closing clause of the section which gives to these commissioners all the powers granted in § 81, grants the power of condemning land for depots, etc., after the completion of the road, and
While the question may not be perfectly clear, we think the views expressed by the defendant are correct, and that its
Now, is it not reasonable to suppose that it would legislate in harmony with rather than countér 16 this law of railroad growth? Is it not more reasonable to believe that it intended to give the power to take such land as might be needed, when it should be needed, and thus enable the company fairly and fully to discharge its duties to the public, rather than that it intended that in its inception the corporation should condemn an unreasonable, apparently unnecessary amount of land, or else be thereafter at the mercy of any who should happen to own land where its increasing business compelled it to have
Could it under this grant condemn any more land than was deemed necessary ? And could any land be deemed necessary which was not in fact required for the company’s present business, and which would not^be needed in the future ■except through some unexpected and rapid growth of the company’s business ? The supreme court of Ohio, in the case from 16 Ohio, supra, say: “The power to make ‘necessary sidetracks,’ prima facie is the power to make them when they are necessary. Otherwise it would be the power to make unnecessary side-tracks. Prima facie power to do any act, is power to do it in such manner and at such time as is usual, convenient and reasonable, in such way as prudent men manage their own concerns.” See in addition to authorities heretofore cited, the following, which support the conclusions reached by
One other matter may be mentioned in this connection as strengthening the right of this particular defendant. It is one of the few corporations in the state created by specia charter; this was granted by the territorial legislature of 1859. (Special Laws 1859, p. 57.) Such special charter, § 3, provides that the company, “ for the purposes of depots, sidetracks, . . . may take more land, earth or material, as may be necessary for the construction or completion, operation, preserving, maintaining said road;” so that if this extra room is needed for the operation of the road, the company may under this section take it.
We do not rest our conclusions upon this section, however, but upon the provisions of the general law heretofore cited, and refer to this simply as strengthening the conclusions otherwise reached.
The other principal question is this: The special charter above referred to made certain provisions for exercising the right of eminent domain. These proceedings differ slightly from the proceedings established by the general law; and the contention is, that the company can proceed alone in accordance with the provisions of its charter, and cannot proceed
These are the only questions which we deem of importance in this case, and in them appearing no error in the rulings of the district court, its order will be affirmed.