52 Kan. 680 | Kan. | 1894
The opinion of the court was delivered by
Upon application, and after due notice and a hearing, the board of railroad commissioners, on January 3, 1893, made an order allowing the Union Terminal Railroad Company to cross the tracks and rights-of-way of the Union Pacific Railway Company and the Missouri Pacific Railway Company at a point near the west end of the bridge across
The proceedings to obtain the right to cross the tracks of the defendants were taken in pursuance of chapter 184 of the Laws of 1887. It is contended that this act with reference to crossings is an exercise of the power of eminent domain, in which the board of railroad commissioners simply acts, ex officio, as condemnation commissioners. Counsel for plaintiff argue, with great earnestness and plausibility, thát the rules of law applicable to ordinary condemnation commissioners are applicable in this case, and, when the board has heard the application, visited the premises, considered the evidence, rendered its decision, and made its award of compensation, they are then, like other condemnation commissioners, functus officio, and can take no further action in the premises. It is urged that they have only such powers as are expressly given
On the other hand, the defendants call our attention to the fact that they are only nominal parties, and that no temporary injunction should be granted until the railroad companies whose legal rights are to be directly affected are made parties to the action.
The objection is good. The railroad companies which are invoking the action of the board, and whose rights will be seriously affected by the action which it will take, were not made parties to this action. The railroad commissioners have no interest in the controversy beyond the abstract one of correctly determining their power in the premises and the rights of the contending parties. They are not the representatives of the railroad companies, and cannot be burdened with the task of protecting their rights. As a ground of injunction, it is claimed by the plaintiff that since the order of January 3,. 1893, allowing the crossing to be made, it has expended about $100,000 in the acquisition of right-of-way and in the construction of its road approaching the proposed crossing. It is contended that the lapse of time and the expenditures made by the plaintiff relying upon the order allowing it to cross gave it a vested right, and the district court held that there was great force in this contention. The fact that the money was expended upon the faith of the order of the old board or that vested rights had accrued against the defendant companies appears to be disputed. But why should the board of railroad commissioners assume the burden of any of the defenses of the railroad companies? The motions for rehearing were filed and are being pressed by the railroad companies, in which they allege numerous rea
Under the ruling of these authorities, and in the absence of the railroad companies, the plaintiff was not entitled to an injunction, and therefore no error was committed in denying the application.
Judgment affirmed. *