43 Fla. 359 | Fla. | 1901
(After stating the facts.)
These proceedings were begun and conducted under the provisions of sections 1544 et seq. Revised Statutes, regulating the exercise of the right of eminent domain; and section 1559 provides that in any case where the petitioner shall hot have acquired title to any .lands which it is using, it may proceed under those sections of the Revised Statutes to acquire such title. Section 1544, so far as applicable to this case, provides that in all cases where the right to take private property for public use without the consent of the owner has been heretofore or shall be hereafter conferred by the constitution, general law or special charter, upon any corporation, it may file a petition in the office of the clerk of the Circuit Court of the county wherein the property lies, which' petition shall set forth, first, the authority under which 'petitioner claims
There is incorporated in the third paragraph of the answer of the respondents objections by way of demurrer to the petition. If we concede that objections of this character can properly be raised by answer, we fail to- see wherein this petition is insufficient. We shall see in discussing another paragraph of the answer that the description of the land sought to- be condemned is sufficient, and we think in all other respects the allegations of the petition are sufficient under the statute quoted.
No proof was offered to- sustain the allegations in reference to the suits in equity and ejectment alleged to haye been pending in the United States courts, mentioned in the fourth and seventh paragraphs of the answer, nor was any proof offered with respect to the allegations in paragraph seven regarding the license and authority granted petitioner by the city of Tampa to- construct its road upon Whiting- street in that city; consequently further reference to these matters is unnecessary.
The fifth paragraph of the answer questions the sufficiency of the description of the lands sought to be condemned. It is argued by defendants in error that the use of the word “about” in the description renders it uncertain, but we fail to find that word used in any manner
The only matters set up in the answer left for consideration are those relating to the authority of the company to extend its road from Plant City to Tampa and to- corvdemn property for its use on that part of its line. The company was organized in July, 1888, under the General Incorporation laws of this State in respect to railroads and canals. According to its articles of association one of its lines extended from Waldo in Alachua county to Plant City in Hillsborough county. It is not denied that the company was legally incorporated, nor that the line from Plant City to Tampa would be an extension of the line from Waldo to Plant City, which last named line was specially embraced in its original articles of association and the charter issued to- it. It is contended, however, that the company could not extend its line from Plant City to Tampa without an amendment of its charter or articles of association, and that the amendment attempted to be made in T890 is not sufficient to authorize the construction of such extension. Petitioner was incorporated under the provisions of Chapter 1987, approved February 19, 1874. By section 1 of that act it was provided that any number of persons, not less than three, might form a company, and for the purpose of organizing were required to give public notice in a-certain specified mariner and to make and
By section 10, every corporation formed under the provisions of the act was empowered, among other things, to cause such examinations and surveys for the proposed railroad to be made as shall be necessary to the selection of the most advantageous route, and for such purposes by its ■officers, agents and servants to enter upon the lands and water of any person for that purpose, to lay out its road not exceeding two hundred feet in width and to construct the same, and for the purpose of cuttings and embankments, and for obtaining' gravel and other material to take .as much land as may be necessary for the
It seems to be clear that no specific amendment of the . articles of association or charter of a company organized under that act was necessary in order to enable such company to extend its railroad from any point named in its charter or articles of association, for the very statute under which it was incorporated gave it the right so to do under its original charter upon complying with the provisions of section 12, “the same as if it had been authorized in its charter, or articles of association.” The limitations upon its right to extend were, that before making same the company must by resolution of its board of directors, to
We have seen that the compan}'- was authorized to construct the extension, and it appears from the pleadings and evidence that such extension had in fact been constructed and in operation for several years prior to the 'institution of these proceedings. The only other question" to be considered is whether the company is invested with
It follows from what has been said that the judgment of the Circuit Court is erroneous, and must be reversed.