98 Neb. 608 | Neb. | 1915
The defendant, the Chicago, Burlington & Quincy Railroad Company, made application to the county court of Lancaster county to condemn certain lands owned, as alleged, by George H. Rogers, Isabella Rogers, and Anna Rogers. Thereupon, George H. Rogers and Anna Rogers began this action in the district court for that county against the then county judge,- P. James Cosgrave, and commissioners who had been appointed to appraise the lands in question, to restrain further condemnation proceedings. Afterwards the said Anna Rogers died, and George H. Rogers, as executor of her will, was substituted in her place as plaintiff, also the railway company became a party to the proceedings. A temporary injunction was allowed, and upon trial the court found generally for the defendants, and plaintiffs have appealed.
The plaintiff argues that, as the statute authorizing such consolidation and conferring the right of eminent domain upon filing the’articles of consolidation with the secretary of state was enacted after the consolidation in question took place, such consolidation was not a compliance with the statute. But we cannot presume that this court was ignorant of the time the statute was enacted, and that the court would have decided that the fact that the defendant company had done all of those things required by the act would not entitle it to the benefits of the act because they had already been done when the statute was enacted, especially as this court reached the same conclusion about ten years after the statute was enacted, and quoted State v. Chicago, B. & Q. R. Co., supra, as authority for that holding without criticising and without suggesting that the fact that the statute was enacted after the consolidation was worthy of consideration. Trester v. Missouri P. R. Co., 33 Neb. 171. The writer of the opinion in the former case expressed the idea that becoming- a domestic corporation under our statute would constitute the defendant a citizen of this state so that it could not remove litigation to the federal courts on the ground of diverse citizenship, but this was not necessary to a determination of the case, and in the latter case the court expressly reserved any opinion on that question. Afterwards the question was decided by the supreme court of the
Eminent domain is a sovereign power. It belongs to the state, and the state can authorize such persons as it sees fit to exercise the right in the public interest. It is not necessary that a railroad corporation shall be the creature of the state in the sense that its stockholders must be residents in order to enable the state to confer upon it the right of eminent domain. Under the federal statute the stockholders of a corporation are conclusively presumed to be residents of the state from which the corporate ex
The supreme court of Washington appears to hold that no attempt to purchase is necessary when the owners deny and contest the company’s right to take the land. State v. Superior Court, 48 Wash. 277. Moreover, the records show that there were negotiations between the defendant and George H. Rogers, and that these negotiations failed. If the company could not obtain his interest, it would be useless to try to negotiate with his sister, as the company could not use an undivided half interest in the land.
The objection that the defendant is not attempting to condemn this land for its own use or for any necessary use of the defendant is without merit. Condemnation is authorized by the statute of “so much real estate as may
There is no allegation in the petition that the proceedings are fraudulent, or not in good faith. The allegation that the defendant does not intend to use the land exclusively, but intends to allow other railroads and corporations and individuals to share in its use, does not state a sufficient reason to deny the application. The condemnation is for the use of the public, and the public generally will share in its use. There is no direct allegation that this land is for the use of some corporation or person who is not entitled to condemn land for public use, and the evidence would not support such allegations.
We have not found any error in the record requiring a reversal, and the judgment of the district court is
Affirmed.