McLean v. District Court of Eighth Judicial District

CourtUnited States State Supreme Court of Idaho
Writing for the CourtSTEWART, J.
Citation134 P. 536,24 Idaho 441
Decision Date19 August 1913
PartiesCHAS. A. MCLEAN et al., Plaintiffs, v. THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT et al., Defendants


1. Where application is made for a writ prohibiting a trial judge from proceeding in a condemnation suit to appoint commissioners, and upon hearing said application is not contested as a proper remedy, this court will not pass upon the question as to whether or not prohibition is a proper remedy.

2. Sec 4807, Rev. Codes, as amended by Sess. Laws 1911, p. 367 provides that "An appeal may be taken to the supreme court from a district court: 1. From a final judgment in an action or special proceeding commenced in the court in which the same is rendered.... within sixty days after the entry of such judgment."

3. Sec 5228, Rev. Codes, provides: "Except as otherwise provided in this title, the provisions of this code relative to civil actions and new trials and appeals, are applicable to, and constitute, the rules of practice in the proceedings in this title."

4. The provisions of sec. 4807, as amended by Laws of 1911, p. 367 and sec. 5228, apply to and constitute the rules of practice in proceedings in condemnation actions.

5. Sec 4807, Rev. Codes, as amended by Sess. Laws 1911, p. 367, and sec. 5228, relating to civil actions and new trials and appeals, are applicable to and constitute the rules of practice in proceedings in condemnation actions.

6. When a judgment is rendered upon questions in issue, such as the right to condemn land and the necessity for the condemnation, and the court makes findings upon such questions and renders a judgment in favor of the plaintiff that the right of condemnation exists and that the necessity exists, and the judgment affects substantial rights, and an appeal is taken to the supreme court from such judgment as provided by law, such judgment is a final judgment upon the issues presented in the condemnation proceedings which involve the right of the plaintiff in the action to maintain a condemnation action and the necessity of the condemnation of the lands sought to be condemned, and the judgment upon such issues from which the appeal is taken is the basis upon which demand is now made for a writ of prohibition, such judgment is not an interlocutory order, nonappealable, but is a final judgment upon the issues in a special proceeding, and may be reviewed on appeal.

7. The sections of the statute heretofore cited, including sec. 5226, Rev. Codes, wherein it is expressly provided that the condemning party should be let into possession, clearly provide for an appeal from a final judgment in an action or special proceeding, and that such appeal does not stay or interfere with the rights of either party to the condemnation suit to proceed in the district court or upon an appeal as provided by law.

8. Art. 11, sec. 5 of the constitution provides: "All railroads shall be public highways and all railroad, transportation, and express companies shall be common carriers, and subject to legislative control," and when a railroad is organized under the laws of the state as a railroad corporation and for public use, such railroad is governed by the constitutional provision and the statutes of the state, and all railroads are to be public highways and common carriers, subject to legislative control."

Original action for a writ of prohibition. Demurrer to the complaint sustained. Action dismissed.

Writ of prohibition sustained, alternative writ issued quashed and writ of prohibition denied. Costs awarded to the defendant.

McFarland & McFarland, Whitla & Nelson and C. L. Heitman, for Plaintiffs.

Where an appeal has transferred the proceedings to a higher court, the lower court is then without any jurisdiction to further proceed.

"Pending an appeal which operates as a stay of proceedings, or pending a decision on the application for such an appeal, prohibition will issue to restrain the trial court from proceeding further in the cause." (32 Cyc. 608; Livermore v. Campbell, 52 Cal. 75; State ex rel. McDonald v. Superior Court, 6 Wash. 112, 32 P. 1072; State ex rel. Schloss v. Superior Court, 3 Wash. 696, 29 P. 202.)

"During the pendency of the appeal, the court below could do no act which did not look to the holding of the subject of the litigation just as it existed when the decree was rendered." (Stewart v. Superior Court, 100 Cal. 543, 35 P. 156, 563.)

The law explicitly provides for an appeal from final judgment in special proceedings.

This court has held that sec. 5228, Rev. Codes, constitutes the law of appeals, except as otherwise explicitly provided. ( Chicago M. & St. P. Ry. Co. v. Trueman, 18 Idaho 687, 112 P. 210.)

In all courts where statutes like or similar to Idaho are involved, an appeal lies. (In re St. Paul & N. P. Ry. Co., 34 Minn. 227, 25 N.W. 345; State ex rel. C. & N.W. Ry. Co. v. Oshkosh A. & B. W. R. Co., 110 Wis. 538, 77 N.W. 193; Gill v. Milwaukee & L. W. R. Co., 76 Wis. 293, 45 N.W. 23; Wisconsin C. R. Co. v. Cornell University, 49 Wis. 162, 5 N.W. 331.)

Appeal bonds stay proceedings in such case. (Daly v. Ruddell, 129 Cal. 300, 61 P. 1080; City of Los Angeles v. Pomeroy, 132 Cal. 340, 64 P. 477.)

It has many times been held that a railroad organized solely for one purpose or another is not a railroad company within the meaning of the law governing railroad corporations. (In re Niagara Falls & Western Ry. Co., 108 N.Y. 375, 15 N.E. 429; In re Split Rock Cable Road Co., 128 N.Y. 408, 28 N.E. 506.)

The courts do not take for granted just what the petitioner says or what it alleges in its articles of incorporation, but the court looks behind the mask and determines the true character of the enterprise. (Chicago & E. I. R. Co. v. Wiltes, 116 Ill. 449, 6 N.E. 49; Pittsburg & C. R. Co. v. Benwood Iron Works, 31 W.Va. 710, 8 S.E. 453, 2 L. R. A. 680.)

No railroad company has a right to incorporate for the purpose of condemning a right of way to act as a private carrier of any certain commodity, and its act in so doing is an imposition on the law, and the condemnation proceedings will be annulled. (People ex rel. Robinson v. Pittsburgh Ry. Co., 53 Cal. 694; Denver R. L. & C. Co. v. Union P. Ry. Co., 34 F. 386.)

Where it appears so strong and so conclusively as it does in this case that this pretended railroad is not a railroad at all, but is simply a logging road and a tram road, to be temporarily constructed for the sole purpose of getting out a certain class of freight and commodity, it shows its lack of being within the provisions of the statute, namely, one which carried both freight and passengers upon equal terms and runs upon regular schedules and provides ample facilities, starting and stopping at regular places. (Sec. 2810, Rev. Codes.) It is disclosed in this case that this road ends about three or four miles from its starting place on a quarter section of land claimed to be owned by Cox and far from any public place. (Apex Trans. Co. v. Garbade, 32 Ore. 582, 52 P. 573, 54 P. 367, 882, 62 L. R. A. 513; Healy Lumber Co. v. Morris, 33 Wash. 490, 99 Am. St. 964, 74 P. 681, 63 L. R. A. 820; Kyle v. Texas & N.C. R. Co. (Tex. App.), 4 L. R. A. 275; Sholl v. German Coal Co., 118 Ill. 427, 59 Am. Rep. 379, 10 N.E. 199.)

John P. Gray and F. M. McCarthy, for Defendants.

This court, in the case of Budge v. Portneuf Irr. Co., 16 Idaho 116, held that the provisions of sec. 5226, Rev. Codes, are constitutional, and especially the latter part of said section, which gives possession of the land to the condemning party pending the final conclusion of the litigation.

The decisions of the California courts, because of the similarity in the provisions of the two statutes, are entitled to great consideration in the decision of this proceeding. ( County of San Luis Obispo v. Simas, 1 Cal.App. 175, 81 P. 973.) Sec. 4825 of the Idaho code is identical with sec. 957 of the California code, construed in the case of Spring Valley Water Works v. Drinkhouse, 95 Cal. 220, 30 P. 218.

If there should be any question with reference to any conflict between the general statute and the special statute, that question is forever set at rest by the decision in the case of Reed Orchard v. Superior Court, 19 Cal.App. 648, 128 P. 9, 18. See, also, Whatcom County v. Yellowkanim, 48 Wash. 90, 92 P. 892; State ex rel. St. Paul, M. & M. Co. v. Dist. Court, 35 Minn. 461, 29 N.W. 60.

Upon the face of the petition in this case and by the exhibits attached to the application it is shown that the district court had jurisdiction of the matter, that the proceedings were regular, and that being the case, this court will not interfere. (Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 390, 691; Texas N. & O. R. Co. v. Orange & N.W. R. Co., 29 Tex. Civ. App. 38, 68 S.W. 801.) The pretended appeal in this case did not stay proceedings in the condemnation case. (Smith v. Cleveland etc. R. R. Co., 170 Ind. 382, 81 N.E. 501; Consumers' Gas Co. v. Harless, 131 Ind. 446, 29 N.E. 1063, 15 L. R. A. 505; Davis v. Northwestern Electric Ry. Co., 170 Ill. 595, 48 N.E. 1058; Byrnes v. Douglass, 23 Nev. 83, 42 P. 798; State ex rel. Volunteer Min. Co. v. McHatton, 15 Mont. 159, 38 P. 711; Fisher v. District Court, 4 Ariz. 254, 36 P. 176; Wabash R. R. Co. v. Ft. Wayne etc. Co., 161 Ind. 295, 67 N.E. 674; Village of Prairie Du Rocheur v. Schoening etc. Milling Co., 251 Ill. 341, 96 N.E. 249; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 P. 631; Heilbron v. Superior Court, 151 Cal. 271, 90 P. 706; McClain v. People, 9 Colo. 190, 11 P. 85.)

The order in this case, from which the appeal is...

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