Chicago, R. I. & P. Ry. Co. v. Williams

• Decision Date: 31 October 1906
• Docket Number: 8,416.
• Citation: 148 F. 442
• Court: U.S. District Court — District of Kansas
• Parties: CHICAGO, R.I. & P. RY. CO. v. WILLIAMS et al.

148 F. 442

CHICAGO, R.I. & P. RY. CO. v. WILLIAMS et al.

No. 8,416.

United States Circuit Court, D. Kansas, First Division.

October 31, 1906

M. A Low and Paul E. Walker, for complainant.

Garver & Larimer, for defendants.

POLLOCK District Judge.

The bill of complaint in this case avers complainant, in the operation of its road at the station of Rexford, Thomas county, this state, to be the owner and to maintain a depot depot platform, main line, siding, passing tracks, station grounds, buildings, and other improvements, all acquired by it under the laws of the state, and all necessary for the transaction of its business as a common carrier for hire.

The bill further avers that defendants, acting under the authority of the county board of Thomas county, have laid out and are about to open for travel a highway 60 feet in width over and across the station grounds, platforms, tracks, and other improvements of the company located at said place, and that unless enjoined defendants will open said highway, and thus destroy and render useless said property of complainant at said place in the carrying out of the public use to which it is now devoted. To this bill defendants demur.

The theory of complainant, as made out by its bill, is that, as the property now sought to be appropriated to highway purposes is already appropriated to and necessary for the discharge of a public use, the same may not be taken for another wholly inconsistent public use, without such power has been expressly conferred upon defendants by legislative sanction, or by clear and necessary implication from legislative enactments; and that no such express or implied legislative authority is conferred upon defendants in this case.

The theory of defendants, as stated in the brief of their solicitors, is:

'(1) The laying out and opening of a public highway to accommodate public travel is the exercise of the political power of the state, exclusively within the control of the Legislature or such tribunals as it may vest with the power, and entirely beyond the control or supervision of the courts. (2) The act which is sought to be enjoined by this suit is one within the rightful power of eminent domain, a sovereign right of the state, and cannot be interfered with by the federal courts so long as such power is being exercised within the limitations of authority granted by the Legislature.'

In so far as the second proposition stated by defendants' solicitors is concerned, it must be conceded, if the insistence be that the authority to lay out and open this highway across and over the property of complainant in the manner attempted by defendants is found to be expressly granted by the Legislature of the state to defendants, or granted by necessary implication from legislative enactments found, then a federal court will not enjoin the exercise of such power. Neither will a state court, for the power of eminent domain is a sovereign power of the state. But if it be thought by solicitors for defendants that a federal court (the requisite jurisdictional facts being made to appear) may not interpose its mandate in any case in which a state court might rightfully interfere, merely because it is a federal court, then such contention cannot be allowed to prevail, for the judiciary act provides:

'The Circuit Courts of the United States shall have original cognizance concurrent with the courts of the several states of all suits of a civil nature at common law and in equity,' etc.

The questions, therefore, arising for determination on this demurrer are: (1) Is the laying out of the public highway in question, under the laws of the state, the exercise of a purely political power, delegated to defendants to determine the necessity for its exercise and to enforce such determination, entirely uncontrolled by the courts? If so, the demurrer must be sustained. (2) If not, has the power here attempted to be exercised by defendants been granted by the Legislature to defendants in express terms, or by such clear implication as to preclude interference on the part of the courts? If so, the demurrer must be sustained.

It must be conceded, and is conceded, by the solicitors for complainant, that the laying out and opening of a highway for the purpose of public travel, under the power of eminent domain, is the exercise of a legislative power. It must also be conceded, and is conceded, that the Legislature cannot, by authorizing a railroad company to exercise the sovereign power of eminent domain in the acquisition of its right of way, station grounds, etc., deprive itself of the power of eminent domain to the extent that it will in future be precluded from again retaking the same property, once condemned and devoted to a public use, through its lawfully constituted agents, for another public use, although inconsistent with the former, should the necessity for such retaking arise. But such power of reappropriation, and the power to determine the necessity for it, must be either exercised by the Legislature itself, or granted to its lawfully constituted agent in clear and express terms or by necessary implication. The right to exercise such power of reappropriation by an agency of the state will not be presumed.

From an examination of many adjudicated cases touching this subject, I am of the opinion the following principles may be deduced: (1) When an attempt is made to exercise the power of eminent domain in the taking of private property devoted to a private use by a lawfully constituted agency of the state, on which the Legislature has conferred the general power of eminent domain, the question of the necessity for the taking is left to the decision of the agents exercising the sovereign power, and the existence or nonexistence of the necessity for the appropriation cannot be questioned in the courts. (2) When property once taken through the lawful exercise of the sovereign power of eminent domain is devoted to and necessary in the carrying out of such public use for which it was taken, is sought to be reappropriated by the sovereign power itself, or through its lawfully constituted agent, on which agent the express or necessarily implied power to do so has been conferred by the Legislature, the power to determine the necessity for the retaking rests in the sovereign or its agent, and the existence or nonexistence of the necessity will not be controlled by the courts. (3) Where an attempt is made by an agency of the state, on which agent there has been conferred only the general power of eminent domain, to appropriate property theretofore taken under such general power, which property at the time it is sought to be retaken is actually and necessarily used in carrying out the public purpose for which it was first taken, in such case the agency of the state attempting the exercise of the power is not the sole and exclusive judge of the necessity for the re-exercise of the power, and the courts are not in such case precluded from examining into the necessity for such retaking.

While there is an apparent conflict in the many adjudicated cases bearing on this subject, yet I am of the opinion their seeming inconsistencies may be reconciled, and that many of them, at least, may be brought into harmony with the above-stated principles, as the examination of a portion of the cases cited and relied upon by solicitors for defendants will show. For example, in the case of Com'rs of Wabaunsee Co. v. Bisby, 37 Kan. 253, 15 P. 241, there was an attempt to take private property devoted to a private use for a public highway. It was held the only question triable on appeal was the amount to be awarded the owner of the property. The same is true of Jockheck v. Com'rs of Shawnee Co., 53 Kan. 780, 37 P. 621. It was thought in that case the homestead character of the private property sought to be taken was material. The court held it was not. The same may be said of Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 170; Backus v. Fort St. Union Depot Co., 169 U.S. 557, 18 Sup.Ct. 445, 42 L.Ed. 853. In each of these cases the state, through its lawfully constituted agency, upon which it had conferred the power of eminent domain, sought to appropriate private property, devoted to a private use, to a public use. Irrigation Co. v. Klein, 63 Kan. 484, 65 P. 684, was precisely of the same character. The question there litigated was the right of the irrigation company to exercise the power of eminent domain at all, and the good faith of its attempted exercise. In C., B., U.P.R. Co. v. A., T. & S. F.R. Co., 28 Kan. 453, the single question presented was the constitutionality of that part of the statute allowing the defendant railroad company to enter upon the land condemned upon payment to the county treasurer of the amount of the award made by the commissioners condemning the land. In K.C.R. Co. v. Com'rs of Jackson Co., 45 Kan. 716, 26 P. 394, the sole question litigated was the right of the railroad company to recover damages for the laying out and opening of a highway over its right of way and track. In Railway Co. v. Railway Co., 67 Kan. 569, 70 P. 939, 73 P. 899, the question now under consideration seems to have first received the attention of the Supreme Court of this state. In that case section 267 of Lewis on Eminent Domain (2d Ed.) vol. 1, is quoted with approval, as follows:

'The general authority to locate and construct a railroad from one point to another does not authorize the taking of property already devoted to railroad uses. In one of the cases cited the court says: 'A charter to build and maintain a railroad between certain points, without describing its course and direction, but leaving that to be determined and established by the corporation, as provided by the general

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