This action was brought in the district court of Lancaster county, to enjoin the defendant from laying a side track across the plaintiff’s lot to reach the warehouse of Henry T. Clarke in Lincoln. Mr. Clarke was not made a party to the suit and his rights will not be adjudicated in this action. On the trial of the cause the court found the issues in favor of the defendant and dismissed the case. It is alleged in the petition that “The plaintiff, Herman Koenig, a resident of Lincoln, Lancaster county, and state of Nebraska, complains of the said defendant, the Chicago, Burlington & Quincy R. R. Co., and alleges that said defendant is a foreign and non-resident railroad corporation, organized
This petition was filed January 29, 1888. On the 28th of July, 1888, the defendant filed an answer in said action as follows:
“Now comes the defendant above named, and for answer to the petition filed by the plaintiff admits that it is a corporation organized under and by virtue of the laws of the state of Illinois, and that -it is operating certain lines of railroad in the state of Nebraska. Further answering the said petition, the defendant denies each and every allegation therein contained.”
OnFebruary 13,1889, the defendant filed a supplemental answer in part as follows :
“Now comes the above named defendant, and for a supplemental answer to the petition herein, admits that it is a corporation duly organized under and by virtue of the laws of the state of Illinois, and that it is operating certain lines of railroad in the state of Nebraska. * * * And defendant had the right to construct, maintain, and use a track across the said lot by virtue of a contract duly executed, sigued, and delivered by the plaintiff on the 22d day of June, 1887, wherein Henry T. Clarke was party of the second part, and which contract and the terms and condition thereof said Clarke had duly kept and performed, but said plaintiff now refuses to keep and perform.” And after alleging certain condemnation proceedings by the*703 Lincoln & Northwestern railway in its behalf, it alleges that “ Further answering the said petition, the defendant denies each and every allegation therein contained.”
It will be observed that the defendant is charged in the petition with being “ a foreign and non-resident railroad corporation, organized and incorporated under the laws of the state of Illinois,” and in its answer and supplemental answer it in effect pleads the same facts.
Sec. 8, art. XI, of the constitution provides that “ No railroad corporation organized under the laws of any other state, or of the United States, and doing business in this state, shall be entitled to exercise the right of eminent domain, or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corporate pursuant to and in accordance with the laws of this state.”
Thus a foreign railroad corporation can neither exercise the right of eminent domain, nor does it possess power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corporate pursuant to and in accordance with the laws of the state. In other words, a foreign railway corporation under our constitution can neither acquire nor hold a railroad in this state unless it becomes a corporation under the laws of the state in some of the forms pointed out in the statute. A railway corporation, being a creature of statute, possesses no powers except those conferred upon it by law.
This question was very fully considered in State v. Seott, 22 Neb., 628-9, and it was held that a foreign corporation is prohibited from acquiring right of way or real estate for depot or other uses, and that it cannot do indirectly what the constitution prohibits it from doing directly. In other words, that, as it cannot perform any of the acts named, therefore it cannot avail itself of the services of another corporation to accomplish this result. The denial to a foreign railroad corporation of the right of emi
Judgment accordingly.