76 Neb. 396 | Neb. | 1906
This action originated before the board of county commissioners of Cass county on a claim for damages filed by :he Missouri Pacific Railroad Company on account of the mossing of its right of way by a section line road in said :ounty. There is no question involved as to the regularity )f the proceedings in opening the highway, and plaintiff’s fiaim for damages was duly filed in conformity with the statute. Appraisers, duly appointed, awarded plaintiff fie sum of $250 as compensation for the crossing of the •oad over its right of way. The county board, however, ■efused to allow plaintiff any damages, and an appeal rom this final order was prosecuted to the district court or Cass county. A jury was waived and trial had to he court; with a finding and judgment for the plaintiff or one cent damages. To reverse this judgment plaintiff rings error to this court.
Plaintiff contends that all the items of damage claimed are extra burdens cast upon it by the opening of the public road across its right of way long after the establishment of its roadbed. Plaintiff relies on section 6, art. XI, of the constitution, which provides that “the exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the legislature, of the property and franchises of incorporated companies already organized, or hereafter to be organized, and subjecting them to the public necessity the same as of individuals,” and urges that under this section the property of corporations is put in the same class as the property of individuals so far as condemnation proceedings are concerned, and can only be taken for public purposes for a just compensation. On the contrary, it is contended by the county that the plaintiff corporation took its franchise subject to the dominant right of eminent domain in the state and subject to such burdens as the state might impose upon it in the reasonable exercise of its power of police regulation of railroad and other corporations; that such regulation is defined by section 110, ch. 78, Comp. St. 1905, which is as follows: “Any railroad corporation,
That statutes imposing conditions similar to those contained in this section have been almost universally upheld by state courts of last resort, as well as by the supreme court of the United States, is now beyond question. This identical section of the statute was before this court in the case of State v. Chicago, B. & Q. R. Co., 29 Neb. 412, and was there declared to be a constitutional enactment that applied as well to roads constructed after the railroad track had been laid as to those in existence at the time of its construction. The doctrine of this case is in harmony with the great weight of authority, arid we see no reason at this time to depart from it. Chicago, B. & Q. R. Co. v. City of Chicago, 166 U. S. 226, 17 Sup. Ct. Rep. 581; New York & N. E. R. Co.’s Appeal, 62 Conn. 527, affirmed as New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 14 Sup. Ct. Rep. 431; Lake Shore & M. S. R. Co. v. Sharpe, 38 Ohio St. 150; Baltimore & O. R. Co. v. State, 65 N. E. (Ind.) 508; Chicago, M. & St. P. R. Co. v. City of Milwaukee, 97 Wis. 418.
In State v. Chicago, B. &. Q. R. Co., supra, referring to the provisions of the statute above quoted, it is said: “Under that act it is the duty of a railroad company to make and keep in repair suitable crossings with approaches, notwithstanding the highway was laid out after the railroad was built. The public authorities are required to build that part of the highway within the right of way which they would have been required to make had the railroad not been constructed.
The authorities are in nowise uniform in the conclusions reached as to the particular items of damage which should or should not fall within the provisions of the statute.
With reference to the claim for the entire cost of grad
We therefore recommend that the judgment of the district court be reversed and the cause remanded for further proceedings under this opinion.
By the Court: For the reasons given in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings under this opinion.
Reversed.