Lakin v. Willamette V. & C.R.R. Co.

• Decision Date: 24 May 1886
• Citation: 11 P. 68,13 Or. 436
• Parties: LAKIN, Adm'r, etc. v. WILLAMETTE VALLEY & C.R. CO.
• Court: Oregon Supreme Court

11 P. 68

13 Or. 436

LAKIN, Adm'r, etc. v. WILLAMETTE VALLEY & C.R. CO.

Supreme Court of Oregon

May 24, 1886

J.J. Walton and John Kelsay, for appellant, Lakin Adm'r, etc.

R.S Strahn, for respondent, Willamette Valley & C.R. Co.

LORD, J.

This was an action to recover damages for personal injuries resulting in death, alleged to have been caused by the negligence of the defendant and its agents. The defendant after making the usual denials, set up, in substance, this defense: That pursuant to an agreement made and entered into between the defendant and the Oregon Pacific Railroad Company, for the latter to build the defendant's line of road, etc., that before the times alleged in the complaint the Oregon Pacific Railroad Company had constructed for the defendant the line of road mentioned in the complaint, between Yaquina city and the city of Corvallis but at the times stated the same was not entirely completed or finished; and that the said Oregon Pacific Railroad Company was, during all the times stated, still engaged in building and constructing the defendant's said railroad, and still had the same in its possession, as well as the track and rolling stock thereon, and was, at the time of the accident by which Winnie P. Lakin lost her life, engaged in running and operating said road; and that the said Oregon Pacific Railroad Company, and not the defendant, in fact sold to said Laura Lakin the ticket upon which the said Winnie P. Lakin was traveling at the time of her death, and at the time the said Winnie P. Lakin was a passenger on the road and cars occupied, used, and operated by said Oregon Pacific Railroad Company, its officers, agents, and servants, and not the defendant, etc.

It will be observed by the answer of defendant that the Oregon Pacific Railroad Company had not leased the defendant's road, but was engaged, under a contract, in building and constructing it, and at the time the alleged accident occurred was running and operating said road for the purposes of traffic in the carriage of passengers. In this state the right to become incorporated is secured by a general law, and any persons may avail themselves of it by complying with its provisions. Under this general law the corporation defendant was organized, and possessed no other powers or functions than the statute creating it confers, or such as are incidental to its existence. In New York, under a statute of similar purport, it has been held that the right of incorporation conferred under such general law, like a special charter, is in the nature of a contract; and that a railroad corporation organized under it has no authority, without the consent of the legislature, to lease its road; and that when it has done so it is responsible to the public for the manner of operating the road. As to the public, those operating it must be regarded as agents of the corporation.

In Abbott v. Johnstown, etc., R. Co., 80 N.Y. 29 CHURCH, C.J., in delivering the opinion of the court, said: "The creation of a corporation to construct and operate a railroad is the exercise of a sovereign power, and includes the grant of important franchises. Such corporations have power to exercise the right of eminent domain, and various rights and privileges not possessed by natural persons; in return for which they are placed under obligation to perform certain duties to the public. It is true, in this state, that the right to become incorporated is secured by a general law, and any persons may avail themselves of it by complying with its provisions; but the public are secured by a variety of safeguards as to the amount of capital, its payment, as to the mode of doing business, making returns, etc. Like a special charter, the right conferred under the general law is in the nature of a contract. It follows that upon principles of public policy, and the ordinary rules of law applicable to contracts, that the corporation cannot, without the consent of the other party, change its terms, or absolve itself from its obligations, by any conventional arrangement made with third persons as to the control and...