6 Mont. 416 | Mont. | 1887
Lead Opinion
This is an appeal from an order of injunction made by the judge at chambers. The order, in substance, prohibited the appellant from entering upon, or in any manner interfering with, the free and unobstructed use and enjoyment, by the respondent, of the tracts of land, right of way, or station-grounds described in its complaint, and from using or occupying the same for the construction of its road-bed, and from committing any waste or nuisances thereon, until the further order of the court. This order was made upon the complaint and answer, and affidavits presented in support of the answer. The facts, as shown by these, were substantially as follows: That both
The answer avers that it is necessary so to construct appellant’s road, and that both roads are constructed through canyons, passes or defiles of Ten-Mile creek; that no damage will be done to respondent’s road, by the construction of the appellant’s road, except by said necessary crossing; and that the respondent refuses to make any equitable terms, whereby both roads may each occupy said canyons, or portions thereof.
The principal question for our determination is as to what authority shall determine the terms and conditions upon which one railroad corporation may occupy the track, road-bed or right of way of another located through a canyon, pass or defile. It is contended by the appellant '
The decision of this court has already been made, sustaining the action of the judge in making the above preliminary order of injunction, but, no opinion having been then rendered, our purpose now is to present our reasons for such determination. The legislation of this territory, in relation to-the right, power and method of taking property for the use of railroads, is wholly comprised in title XY on the subject of eminent domain. E. S. div. 1, p. 147, and article 3, ch. 15, div. 5, E. S. p. 464, entitled “Eailroad Corporations,” commonly known as the “ General Eailroad Law.” The former of these expressly refers to the taking of property for the uses of railroads, and confers the power of exercising the right of eminent domain, for this as well as all other public uses therein named, upon the district court. Section 585 of this title provides as follows: “ All proceedings under this title must be brought in the district court for the county in which the property is situated. They must be commenced by filing a complaint, and issuing a summons thereon. Section 586 designates, among other things which the complaint must contain, the following: “. . . Third, a statement of the right of the plaintiff.” This evidently refers to section 583 of the same title, which provides that, “ before property can be taken, it must appear (i) that the use to which it is to be applied is a use authorized by law; (2) that the taking is necessary to such use; (3) if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.”
Therefore, unless taken away by conflicting legislation, either directly or by implication, the district court of the
This section provides for four kinds of cases; but the matter under consideration is referable to the first of these, viz.,
Some of these have been well suggested by the judge in his decision: “ In what places, if any, is the canyon wide enough for the second track? Might the second track be built on the opposite side of the canyon? Should it be built on or over the first track? These questions, and many others, involving science, skill and engineering, would have to bo solved before the court could adjudicate upon the question.”
To say that a road seeking to occupy another’s right of way or track should be the judge of the equitable terms of such occupancy, and of the construction of its road, would place it in the power of the former to injure, or even de
If the construction contended for by the appellant is cor-, rect, the intention of the legislature to make the second railroad the judge of the terms and conditions should appear in plain and express terms, or by necessary implication. Mills,
The legislature recognized, in the case of the passage of railroads through a canyon, pass or defile, a case of necessity, viz., that it was necessary for the public interest that they should pass through without excluding each other, and in such a case as the one at bar, that the second may use •the property of the first; but provided that, before this could be done, it must be upon the just and equitable terms and conditions adjusted by the district court.
Railway Co. v. Alling, 99 U. S. 463, is a case directly in
In interpreting the same act of congress, Judge Hallett, of the circuit court of the United States, in the case of Denver & R. G. R'y Co. v. Denver, S. P. & P. R. Co. 17 Fed. Rep. 867, which is also a case in point, says: “ It is not said in the act of congress that the entire right of way which may be appropriated by one company is subject to be used by another, but only that the first appropriation shall not prevent any other company from the use of the same canyon, pass or defile; and it must be clear from the language used that it is only in cases of necessity that one company can go upon the right of way of another for the purpose of building its road.” “ Now, whenever a controversy arises between two companies in respect to the exist
These principles appear to us to be so applicable, so correct and just that it would almost seem as if the provision of our statute under consideration was drawn to conform to the above act of congress, and the foregoing interpretation of it by these decisions. These decisions demonstrate conclusively that, under the provision of our statute for such cases, the respondent has the right of way through the canyons; that it may object to any encroachment upon' its right of way or track until it appears to the court that there is a necessity therefor; that until it so appears, any encroachment by the appellant upon such track or right of way would be a trespass; and that when such necessity does appear, and there is a failure to agree upon the terms of occupancy, the matters in dispute shall be adjusted by the district court of the county where the canyon, pass or defile is situate, upon equitable terms.
It seems to us plain, for the foregoing reasons, that the former decision of this court sustaining the action of the judge at chambers in issuing the foregoing order, of injunction was correct.
Judgment affirmed.
Dissenting Opinion
(dissenting). In this case, as announced at the August term, I feel constrained to dissent from the decision arrived at by a majority of the court. Not being-able to agree with them in the opinion delivered, a proper respect for their view's demands that I should state my reasons for dissenting therefrom. This will be done as briefly as the importance of the case and the issues involved will allow. Both the appellant and the respondent are railroad companies, chartered under the general laws of the territory of Montana. It is the purpose of each, as expressed in their charters, to build a line of railroad from the city of Helena through the pass or canyon of the Ten-Mile creek, to the town of Rimini.
The respondent was the first to occupy the ground, and-had commenced surveying and mapping out its route, and had partly constructed its road-bed along the greater portion of its route, before the appellant began operations under its charter. The appellant afterwards sought to lay out and construct its road over nearly the same route,, passing through the same canyon, approaching in some places to within a few feet of the road-bed of the respondent, at one place crossing its track, and at another place running through its depot grounds. Thereupon, the Central Company, on 25th July, 1886, brought suit in the district court of Lewis and Clarke county, and applied for a temporary injunction, or restraining order, to the chief justice presiding in said court, to prohibit the Red Mountain Company from constructing its road-bed upon the track, right of way or station-grounds-of the plaintiff. Then in turn, on the same day, the Red Mountain Company answered, attaching to its answer affidavits opposing the issuance of the injunction or restraining order, and praying for a dismissal of the complaint, and for an order adjusting the rights of the parties in occupying portions of the canyon of Ten-Mile creek. On the 2d day of August, 1886, the restraining order was granted and issued, prohibiting the Helena & Red Mountain Railroad Company from entering upon the lands and
This case came up in the supreme court at the August term, 1886, and after full argument of counsel the decision of the lower court was affirmed by a majority of the court, but no opinion was filed or read at that term. At the January term, 1887, the opinion of the court was filed, and not being yet able to concur I propose to give my reasons for dissenting.
The rights of both parties to this litigation are well defined by the statutes of the United States and of this territory, and the remedy for any infringement of them is clearly outlined in section 309 of the Eevised Statutes of Montana. Under the act of the 43d congress, chapter 152 (18 Stat. at Large, p. 482), passed the 3d of March, 1875, both of these companies have the right to construct their roads over the public lands- of the United States, and are granted the right of way thereover, to the extent of one hundred feet on each side of the central line of the road. This act of congress is virtually re-enacted by the legislature of this territory, in the Eevised Statutes, on page 467, section 306, of the fifth division. The territorial statutes go farther, and provide, in accordance with the act of congress, for the manner in which private lands may be condemned for the use of railroad companies. E. S. art. 3, div. 5.
But under the circumstances of this case, according to my view of it, the statutes and general principles of law in regard to eminent domain and the condemnation of property for public use have no application, except as to the
But within the canyon of the Ten-Mile creek an entirely different state of facts exists, and other sections of the statutes are provided for the regulation of the rights of railroad companies whose conflicting interests may bring them into collision with each other in the construction of their tracks through the mountains. For convenience in considering these questions, I will quote at length the statutes-in regard to the rights of railroad companies passing through any canyon, pass or defile on the public lands of the United States. The law of congress reads as follows: “ That any railroad company whose right of way, or whose track or road-bed upon such right of way, passes through any canyon, pass or defile, shall not prevent any other railroad-company from the use and occupancy of said canyon, pass- or defile for the purposes of its road, in common with the-road first located, or the crossing of other railroads at grade. And the location of such right of way through any canyon, pass or defile shall not cause the disuse of any wagon or other public highway now located therein, nor prevent the location through the same of any such wagon-road or highway, where such road or highway may be necessary for the public accommodation; and where any change in the location of such wagon-road is necessary to permit the passage of such railroad through any canyon, pass or defile, said railroad company shall, before entering upon the ground occupied by such wagon-road, cause Jo be reconstructed at its own expense in the most favorable location and in as perfect manner as the original road; provided that such expenses shall be equitably divided between any number of
The statute of the territory reads as follows: “That any such corporation whose right of way, or-whose track upon such right of way, extends through any canyon, pass or defile, shall not exclude any other such corporation from a passage through the same, upon equitable terms, and in case of disagreement, upon application of either of the parties,, with notice to the other, the same shall be adjusted by a court of competent jurisdiction; and if the passage of any such railroad through any canyon, pass or defile causes the disuse or change of location of any public wagon-road that may traverse the same, damages shall be awarded therefor as provided by section 307 of this article; and if it shall become necessary for any other railroad company, passing through the territory, to cross or pass any other railroad track or defile, already constructed or surveyed, the same may be so done without any compensation therefor, except the actual damage done by so doing; and when two or more companies desire to pass through the same canyon, pass or defile, neither shall exclude the other from passing through the same, and neither shall have any compensation therefor, except the actual damage done by so doing; and if it should be necessary that the said companies should use the same track or bed in passing through such canyon, pass- or defile, the same may be done without any compensation therefor from one to the other, except the actual damage' done by so doing.” K. S. sec. 309, 5th div. p. 469.
These two statutes exhibit the legislative will upon the-subject, and define the rights of two or more railroads passing through any canyon, pass or defile in the territory of Montana. There is no serious conflict between them, although the statute of the territory is more full and explicit on some points. It was apparently drawn to carry out or-supplement the law of congress.
Upon the proper construction of these two statutes the decision of this case should in a great measure depend.
There is evidently a broad distinction between the rights of railroad companies to a right of way over the public lands of the United States, in the territory generally, and their rights when running through a canyon, pass or defile. In the case at bar, both railroad companies have located their roads through the canyon, nearly the entire distance from Helena to Rimini. A canyon, as described by Webster, is “a deep gorge, ravine or gulch between high, steep banks, worn by water-courses.” Nothing is said in the statute about the width of the canyon to which the law is intended to apply, but it may be fairly and correctly presumed that it was intended to regulate the rights of railroad companies, only in such canyons as are too narrow at the bottom to admit of two rights of way, of width allowed over other lines. Hence we may conclude, wherever a gorge or canyon is less than two hundred feet wide, the statute quoted herein would apparently apply. Such I believe to be the case of the canyon of Ten-Mile creek, referred to in the pleadings herein.
In the opinion of the majority of the court heretofore delivered, it has been said that the principal question for determination is, “What authority shall determine the terms and conditions upon which one railroad corporation may occupy the track or road-bed or right of way of any other, located through a canyon, pass or defile.” Such does not seem to me to be a correct statement of the case.
It has been well said that “ the right of passage being a common right granted to all railroads, it necessarily follows that no greater burdens, by way of expense, or otherwise, could be imposed on the second company than is borne by the first company, in constructing its road through the canyon. If otherwise, the common right would be destroyed. The first company in a canyon has no right to exclude the second company from its right of way, on the ground that by the expenditure of more money by the second company, it would be possible to build a road through the canyon without encroaching upon the right of way of the first company. The act of congress which grants the common privilege forbids the exercise of such a right by the first company. ' Under this act of congress, canyons, passes and defiles become common highways for the passage of railroads, the same as the streets of a city or town are common highways for the passage of the people. The grant is to all railroads alike, and they must exercise the right in common. No one road can acquire any greater privilege than any other. The territorial legislature can impose no conditions or limitations upon the rights conferred by this act of congress. The act of congress is unconditional. The right of passage is absolute. The first company acquires no such pi’bperty in its right of way as to enable it to claim damages from the second company that occupies such right of way, in its passage through the canyon. The first company acquires no property in the canyon, as a canyon, and can claim no damages from the second company for exercising rights and privileges that belong to each alike, without condition.”
Then it appears to me from the pleadings and accompany
Mr. Justice Harlan says: “ At the time of the passage of the act of 3d March, 1875, congress had become convinced of the importance to the country, and particularly to the western states, of preserving canyons, passes and defiles in the public domain, for the equal and common use of all railroad companies organized under competent state or territorial authority, and to which might be granted, by national authority, the right of way. It results from what we have said, that the court below erred in enjoining the Denver Company from proceeding with the construction of its l’oad in the Grand canyon. The decree as entered can only be sustained upon the assumption that the Canyon City Company had, by prior occupancy, acquired a right superior to any which the Denver & Eio Grande Eailway Company had, to use the canyon for the purpose of constructing its road. But that assumption, we have seen, is not sustained by the evidence, and is inconsistent with the rights given by the acts of congress to the Denver Company. The Denver Company should have been allowed to' proceed with the construction of its road, unobstructed by the other company. Where the Grand canyon is broad enough to enable both companies to proceed without interference with each other in the construction of their respective roads, they should be allowed to do so. But in the narrow portions of the defile, where this course is impracticable, the court, by proper orders, should recognize the prior right of the Denver & Eio Grande Eailway Company to construct its road. Further, if in any portion of the
What, then, are the rights of these two companies in regard to the one crossing the' track of the other, at grade, within the canyon of Ten-Mile creek? These rights are also regulated and defined by the act of congress and the territorial statute quoted, and are interpreted by. the decision of the supreme court of the United States. There is no question involved here in regard to the right of one company to use the track or road-bed of the other, for the canyon plainly appears from the exhibits contained in the record to be sufficiently wide to easily admit of the proper construction of two tracks side by side. The act of congress says that the first company “ shall not prevent the second company from crossing other railroads at grade.” Of course if the territorial statute conflicts with the law of congress, the former must give way, or is rather, null and void. The territorial statute says: “If it shall become necessary for any other railroad company, passing through the territory, to cross or pass any other railroad track or defile, already constructed or surveyed, the same may be done without any compensation therefor, except the actual damage done by so doing? It does not seem to me that there is any conflict between these statutes. The law of congress does not give one railroad company the right to damage the track of another without payment therefor, and if such a thing were attempted it could not be done under the constitution. Art. 5 of the Amendments; Pasch. Ann. Cons. pp. 44, 261-3. Then we must under
What are the remedies provided in those statutes for the enforcement of these rights ? The law of congress is silent as to remedies, leaving the parties to the general power of courts in case of an infringement or deprivation of their rights. The territorial law provides for the passage of more than one railroad through a canyon “ on equitable terms,” and further that “ in case of disagreement, upon application of either of the parties, with notice to the other, the same shall be adjusted by 'a court of competent jurisdiction.” The statute in this respect is merely declarator}'-. It confers no jurisdiction upon any court which it had not already. A court of equity could adjust the conflicting claims of the parties, in such a case without authority from the statute, even-had it been intended to confer jurisdiction thereby, which does not seem to be the case. Then, so far as the remedies in this case are concerned, they must be determined independently of the statutes; and we are remitted to the general principles of law as laid down by the best writers and the decisions of our courts of last resort to determine them.
There is no question but that the court, on being invoked and due notice given, should have adjusted the equitable
It must be borne in mind that this order was not granted nor issued until after the filing of both the complaint and answer, fully supported by the affidavits and exhibits attached thereto, and hence the case occupied the same position that it would have done had the order been made on a motion to dissolve on bill and answer. We must consider the allegations of all the pleadings, and may look to the affiavits and verified exhibits in determining the respective rights of the parties.
It is of course well settled that great caution should be exercised in the granting of injunctions, and that the rights of the applicant and the necessity for this relief must be clear to warrant the exercise of this extraordinary power. And again, the case must present one of irreparable injury, incapable of perfect pecuniary compensation, and wherein an adequate and speedy remedy is not provided at law, before a court of equity would be justified in interposing by injunction. These general principles are too well known and understood to require a citation of any authorities in support of them.
It is also said by high authority that “ Upon an application to dissolve an injunction, it is proper for the court to balance the relative convenience or inconvenience which would arise from its continuance or its dissolution; and if, upon weighing such considerations, the continuance of the injunction is likely to work more mischief than wpuld result from its dissolution, it is proper to grant the motion to dis
In a Georgia case, the supreme court says: “ "Where a discrimination can be properly made and the injunction can be dissolved in part and retained as to the remainder, if the answer satisfactorily denies a portion of the equity of the bill, a dissolution may be allowed fro tanto.” Edwards v. Perryman, 18 Ga. 374.
Applying these well known principles of equity to the case at bar, in so far as the right of way is concerned, I fail to see any necessity for this extraordinary writ to prevent the use of the common right of way through the canyon. And indeed no injury is-shown to have been done to the respondent, for no exclusive right exists under the statutes of the United States, and even if a right existed and had been invaded, a speedy and adequate remedy existed at law for the enforcement of that right by an action for damages, or by an application to have the “ equitable terms ” adjusted. The record shows that neither company had laid down a single rail, nor was ready to do so, much less to run a locomotive or a train of cars. No imminent danger of collision was to be apprehended. And what damage could accrue to one company by the other constructing a track parallel, or nearly so, at a distance of from sixteen to a hundred feet from its own road-bed, the record does not show, and I am at a loss to imagine.
But it is said that, in justice to the appellant, this injunction should be granted; because, if suffered to go on and build its road-bed, afterwards the court in adjusting the equitable terms might compel it to move the same at a great loss. The railroad company is supposed to know its
Rut in so far as the station-grounds, and the respondents’ track are involved, a different principle applies. Here the appellant company is endeavoring to subject the property of respondents to a servitude, to do which, the right of eminent domain, conferred by the sovereign, must be invoked, and necessarily all the forms must be complied with, and just compensation made, before any right arises in favor of the appellant. Hence, in these respects, the injunction was proper, and should have been granted by the judge below.
Then under all the circumstances surrounding this case, as developed in the record before the supreme court, and in accordance with the statutes of the United States and this territory, as well as the common law applicable thereto, it appears clear to my mind that the restraining order should have been limited to preventing an appropriation of the station-grounds of the Central Company, and the crossing of its track by the Red Mountain Company, until the proper condemnation proceedings were had in the one case and the necessity therefor had been shown in the other. Such a modification of the interlocutory order, it seems to me, under the statute, should have been made by the supreme court.