Denver R.L. & C. Co. v. Union Pac. Ry. Co.

• Decision Date: 26 March 1888
• Citation: 34 F. 386
• Parties: DENVER R.L. & C. CO. v. UNION PAC. RY. CO., (three cases.)
• Court: U.S. District Court — District of Colorado

34 F. 386

DENVER R.L. & C. CO. v. UNION PAC. RY. CO., (three cases.)

United States Circuit Court, D. Colorado.

March 26, 1888

L. M Cuthbert, for plaintiff.

Willard Teller and H. M. Orehood, for defendants.

HALLETT J.

In the three condemnation cases the Denver Land & Coal Company against the Union Pacific Railway Company there was a motion to strike out the answers, which was passed upon a few days ago, on the ground that no such pleading could be allowed in a case of that kind. That motion was overruled. The plaintiff has raised objections to the several answers by motion and by demurrer as to their merits. The first answer is that the petition herein does not state sufficient facts to constitute a cause of action, and does not state facts which entitles the petitioner to the action and relief prayed for and demanded in said petition. The plaintiff is, of course, right in saying that this is only a demurrer and not an answer at all. It must be struck out. The second answer is that the articles of incorporation of the said petitioner are not sufficient, and do not authorize the petitioner to maintain this action, or to appropriate or condemn the land as prayed for in said petition. The articles of incorporation are not set out in the petition, and they are not set out here. Of course the defendant cannot make any objection to the articles of incorporation in this general way without specifying what his objection is or in what respect the articles are not sufficient. The answer will be struck out. The third answer is that 'the defendant, further answering, respectfully shows to the court and alleges that the said company was organized and is a private corporation for the purpose of constructing and operating a railroad from certain coal lands owned, as alleged by the petition, to Denver, and for the purpose of hauling its coal from said lands to the city of Denver, as private enterprise, and not for the accommodation of the public in any way or manner whatever. ' This answer appears to be intended to present the question that the road built by the petitioner is a private road, and not for public use. It is, however, rather indistinctly stated. The averment is that the company was organized for this purpose, and as a private corporation without a distinct statement as to what the road will be if built. The inquiry is not as to what the company was organized for, or whether it will be a private or public corporation, but what the road will be,-- the structure itself,-- if any such thing shall be made. I regard it as a serious defect in the answer, and don't think it can be a question of fact to be tried, whether this company is organized in one way or another, except it may be to inquire whether it conforms to the statute regulating such matters but it may be a question of inquiry to be determined as matter of fact, whether the road, when built, will be a public or private road, and the question will be the same whether the road shall be built by a corporation or by an individual. That question does not in any way appertain to the other, by whom the road is built. It is a question what the road itself is, not as to the character, or the quality of the builder. But, taking the answer to be a statement that the road will be private and not public, and is intended so to be, petitioner denies that any such answer can be made or received in an action of this kind, and he founds his argument upon provisions of the constitution of the state. In section 15, art. 2, Const., some provision is made as to taking private property for public use, and the last clause of that section is:

'Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.'

Counsel for petitioner concedes that by this clause an inquiry may be made as to whether the road which it is proposed to build is of a public or private character; and that he cannot very well deny, because this is not a new principle in the law. It is affirming only what stood before in the law, probably that there might be no misunderstanding in respect to it. Mr. Mills, in section 10 of his work on 'Eminent Domain,' referring only to the general principle which stands in the law, without support from any constitution says:

'The legislature cannot so determine that the use is public as to make the determination conclusive upon the courts. The attempt of the legislature to determine the public character of the use does not settle that it has the right to do so, but the existence of the public use in any class of cases is a question to be determined by the courts. The presumption is in favor of the public character of a use declared to be public by the legislature, and unless it is seen at the first blush that it is not possible for the use to the public, the courts cannot interfere. The grant of the right of eminent domain is a

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