Northwestern Telephone Exchange Company v. Chicago, Milwaukee & St. Paul Railway Company
| Decision Date | 22 May 1899 |
| Docket Number | 11,593,11,602 - (87,88) |
| Citation | 79 N.W. 315,76 Minn. 334 |
| Parties | NORTHWESTERN TELEPHONE EXCHANGE COMPANY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Petitions in the district court for Martin and Jackson counties by Northwestern Telephone Exchange Company to condemn and acquire right of way for the erection of its lines of poles and wires over certain lands in said counties including lands acquired by defendant railway company for its right of way. The petitions were heard together before Quinn J., who found in favor of petitioner, and made an order in each case appointing commissioners to assess the compensation to be made to defendant. The proceedings having been conducted to a final determination, judgments were entered in favor of petitioner confirming its title to the right of way over the lands in question. From the orders appointing the commissioners, and also from the judgments, defendant appealed. Reversed.
Domestic Corporation -- Alien Stockholders -- G.S. 1894, § 5876 -- Presumption.
Whether G.S. 1894, § 5876, which provides that no corporation or association, more than 20 per centum of the stock of which is or may be owned by any person or persons not citizens of the United States, shall hereafter acquire, or shall hold or own, any real estate hereafter acquired in this state, is applicable where a corporation is attempting to exercise the right of eminent domain, is not decided, but, if it is, it is held that, as to a corporation organized under the laws of the state, it must be presumed, until the contrary appears, that a sufficient percentage of its shareholders are citizens.
Telephone is a Telegraph -- Eminent Domain.
The rule is, when applying the principles of the common law or when construing statutes, that the telephone is to be considered a telegraph, unless express statutory provisions govern the case. So telephone companies, when establishing their lines, have the right of eminent domain, under the constitution and laws, to the same extent as have telegraph companies.
Federal Statutes -- Telegraph Lines upon Post Roads -- Railroad Right of Way.
The federal statute (R.S. [U.S.] §§ 5263, 5268, 5269) authorizing telegraph companies, upon complying with its terms, to construct and maintain their lines along and over all post roads of the United States, and (section 5964) making all railroads post roads, does not confer upon a telegraph company the right to occupy the right of way of a railroad with its line without its consent, or a contract with a prior owner which is binding upon it.
Eminent Domain -- Land Already Devoted to Public Use.
The general rule is that land already devoted to another public use cannot be taken under general laws where the effect would be to extinguish a franchise. If, however, the taking would not materially injure the prior holder, the condemnation may be sustained.
Eminent Domain -- G.S. 1894, § 2604 -- Necessity for Condemnation -- Evidence.
The plaintiff in these proceedings is authorized, under G.S. 1894, § 2604, to exercise the right of eminent domain. No express authority to condemn for its use land which has already been appropriated to another public use is found in the statute, and such authority must arise, if at all, by necessary implication. There must be a reasonable and practical necessity for such a proceeding, not a necessity created by the corporation asserting the right that it may be convenienced, or a necessity arising out of a desire to unreasonably economize. Held, upon the evidence in the case at bar, that there was no reasonable or practical necessity for the condemnation of an easement for plaintiff's line over and across certain portions of defendant's right of way.
W. E. Todd and Lowden, Estabrook & Davis, for appellant.
The facts alleged in the petition do not show that petitioner is entitled to acquire, or even to hold or own, real estate in Minnesota, nor does the testimony supply this omission. The petitioner should have alleged and proved that 80 per cent. of its stock was owned by citizens of the United States. G.S. 1894, § 5876. Petitioner must affirm every qualification entitling it to acquire real estate by whatever means. Fox v. Holcomb, 34 Mich. 298; In re Montgomery, 48 F. 899. A corporation has not the rights of a natural person. Even at common law an alien could only acquire property by act of the grantor and hold it till office found, and could not acquire it by operation of law. Phillips v. Moore, 100 U.S. 208, 212. Where a statute provides that an alien cannot acquire real estate, even the act of the grantor cannot give him title which he can hold till office found. Ryan v. Egan, 156 Ill. 224; Wunderle v. Wunderle, 144 Ill. 40. There is a distinction between an inhibition to hold property and an inhibition to acquire it. In the former case, by weight of authority, a corporation would take title till office found, and could transmit title. See, however, In re McGraw, 111 N.Y. 66; Wood v. Hammond, 16 R.I. 98. But the rule that the limitation of a corporation to receive and hold real estate concerns the state alone does not apply when a corporation as plaintiff seeks to acquire real estate which it is not by law authorized to acquire. Case v. Kelly, 133 U.S. 21. The ownership of its stock is peculiarly within the knowledge of petitioner. The same rule should apply as in the case of a right claimed by virtue of a license. 5 Thompson, Corp. § 5770. The right asserted is not legal without a license. State v. Schmail, 25 Minn. 370; State v. Bach, 36 Minn. 234. The statute is in the nature of a statute of mortmain. It empowers or licenses the acquiring of real estate only on conditions, which are, therefore, conditions precedent.
Petitioner is not a telegraph company within the act of congress of July 24, 1866. The act does not authorize a telegraph company accepting its provisions to enter on the right of way of a railroad company as a post road of the United States, without the consent of such railroad company. Boston v. Salem, 2 Gray, 1, 37; Payne v. Kansas & A. Val. R. Co., 46 F. 546. The occupancy of a railroad right of way by a telegraph company is the taking of private property. Atlantic & P. Tel. Co. v. Chicago, R.I. & P.R. Co., 6 Biss. 158; Pensacola Tel. Co. v. Western U. Tel. Co., 96 U.S. 1.
The power of eminent domain delegated to petitioner under the laws of Minnesota does not authorize it to expropriate the right of way of defendant. A general authority to expropriate property, though in terms covering all property and excepting none, does not refer to property previously dedicated to public use. Lake Erie & W.R. Co. v. Board of Commrs., 57 F. 945; In re New York, 99 N.Y. 12, 23. A subsequent grant cannot be construed to authorize the subversion of the former use, unless such appears by express words or necessary implication to be the legislative intent. Little Miami v. City, 23 Oh. St. 510. Authority to condemn defendant's right of way cannot be created by combining the state and federal statutes. People v. Humphrey, 23 Mich. 471; Kohl v. U.S., 91 U.S. 367; Darlington v. U.S., 82 Pa. St. 382.
When the right of way of a railroad has been dedicated by the legislature to the use of the public out of the public domain, or condemned by the railroad company under authority given by the legislature limiting the amount of real estate to be taken, the court is without jurisdiction to expropriate any part of such right of way to a subsequent public use, on the ground that the whole of the right of way is not actually occupied by the railroad company or necessary for its immediate use. The constitution does not create the power of eminent domain, but only limits its exercise. The agency to which the power is delegated holds it in trust. The legislature is the only custodian of the power, and it alone can delegate it and prescribe the purpose for its exercise and the machinery for its accomplishment. The needs of the company having once been determined by the legislature, the question is no longer a question of fact, but a conclusive presumption of law. The legislature having once devoted particular property to a particular public use, giving to its agency exclusive control and dominion over such property, only the legislature has the right to retake what it has given; and the inquiry of the court should be, not what is expedient, or convenient, or economical, or what ought to be, but what the legislature actually intends shall be. Matter of New York, 99 N.Y. 12; Pittsburgh v. Peet, 152 Pa. St. 488; Appeal of Pittsburgh, 122 Pa. St. 511, 530; In re St. Paul & N.P.R. Co., 37 Minn. 164; Fidelity T. & S.V. Co. v. Mobile St. Ry. Co., 53 F. 687; St. Paul U.D. Co. v. City of St. Paul, 30 Minn. 359; Housatonic v. Lee, 118 Mass. 391.
Public policy requires that a railroad company should have absolute and exclusive jurisdiction over every portion of its right of way. Lewis, Em. Dom. § 586; Mills, Em. Dom. §§ 208, 209; Randolph, Em. Dom. § 215; Lake Superior & Miss. R. Co. v. Greve, 17 Minn. 299 (322); St. Paul U.D. Co. v. City of St. Paul, supra; Milwaukee & St. P.R. Co. v. City of Faribault, 23 Minn. 167; Minneapolis W. Ry. Co. v. Minneapolis & St. L. Ry. Co., 61 Minn. 502; St. Onge v. Day, 11 Colo. 368; Presbrey v. Old Colony, 103 Mass. 1; Baltimore v. North, 103 Ind. 486; City v. Chicago, 123 Ind. 486; City v. Chicago, 123 Ind. 467; City v. Jeffersonville, 126 Ind. 466. The testimony reveals no paramount necessity for taking the property sought to be condemned.
D. F. Morgan, for respondent.
The petition is sufficient, since it states all the facts enumerated in G.S. 1894, § 2605. The proceeding is not to acquire land, but to acquire right of way on a right of way existing over...
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