3 F. 702 | U.S. Circuit Court for the District of Minnesota | 1880
Application for an injunction to. restrain defendants from building the proposed railroad from Barnes-ville to Moorhead across the track of the plaintiff, and the strip of land upon which the same is constructed, and extending 200 feet on either side thereof, is heard upon bill, special answer, and affidavit of the president of the defendant, the Barnesville & Moorhead Railroad Company. It appears that the latter company has taken steps, according to the laws of the state of Minnesota, to obtain a right of way or crossing over the plaintiff’s railway track. The proceedings are not completed, and no appraisers or commissioners have been appointed to fix the amount of compensation or damage. Said defendant also claims title to the property over which the plaintiff’s road runs at the point it desires to cross with its road, and seeks to take possession of the same, with the view of making its crossing, without the plaintiff’s permission or consent. The plaintiff, being in the possession and occu
I have no doubt of the right of the Barnesville Railroad Company to cross the plaintiffs road, on payment of compensation therefor, when the amount is fixed by commissioners selected under the railway legislation of this state; and the' charter of the Northern Pacific Railroad Company, obtained from the general government, does not exempt its right of way from the operation of the laws of the state of Minnesota, and forbid a railroad company organized under the general la ws of the state to exerci.se the right of eminent domain. The important question in this case is whether this defendant can enter upon the private property of this company and disturb its possession and make the crossing before damages are actually assessed and paid, or secured. The laws of the state certainly do not authorize it, and the constitution in terms forbids it. “Private properly shall not bo taken for public use without just compensation therefor, first paid or scoured,” is the constitutional provision. Chapter 80, Laws of 1879, and chapter 34, sections 13 to 23, Young’s Minnesota Statutes, confer the right of eminent domain upon railway corporations, and specify the necessary proceedings where a corporation exorcises it, and it is only after the compensation for the property to he taken is assessed and paid, or an appeal taken from the award of commissioners, that the company ean proceed with the construction of its railroad, and enter upon and take possession of the premises sought to be condemned, and on appeal only by executing a bond conditioned to pay the award.
In the cases cited by the defendants’ counsel (17 Minn. 235, and 18 Minn. 174) the railroad companies had taken possession of the land without opposition and constructed their roads, and the court refused an injunction, or permitted a bond to be given by the corporations with the condition that compensation should be paid when ascertained in proceedings to be forthwith instituted. These decisions are not applicable to the present case. There is no inconvenience to the public for the reason that the railroad is not completed and in operation, as in the cases cited.
I have fully considered the suggestion of counsel that a conditional order be made allowing an injunction, unless, within a short time to be fixed by the court, the defendants execute a bond conditioned to prosecute, forthwith, the proceedings commenced to obtain the right of way for crossing plaintiff’s track, and to pay such sum as the commissioners may award. I do not think this court has any power to grant the right of entry upon the plaintiff’s road for this purpose on any such condition. The right of the Barnesville & Moorhead Railroad Company to cross the plaintiff’s track is given by the statute of the state, which particularly and in detail points out the requisite steps to be pursued as 'conditions precedent to the right to construct the crossing, and without compliance therewith it must be enjoined. There is not such latitude for the exercise of discretion by a court of equity where the defendant’s right to do an act depends
A temporary injunction will issue, with leave to the defendants to apply for a dissolution thereof hereafter, to either of the judges of this court.