BRACE, J.
This is a proceeding by certiorari. The relator is a railroad corporation, organized under article 2, c. 42, Rev. St. 1889, for the purpose of building, operating, and maintaining a standard-guage railroad from a point in, at, or near the town of Bevier, in Macon county, to a point in, at, or near the town of Ardmore, in said county. On the 17th of April, 1899, the relator filed in the circuit court of said county its petition, under the provisions of article 6 of said chapter, to condemn a right of way for its railroad "along and across one acre of ground south of the bridge over Sulphur creek, in Macon county
and for about thirteen hundred feet along the east side of the eastern railroad track of the Northwestern Coal & Mining Company, and south of one acre of land aforesaid, and also a crossing over said eastern railroad track of said coal and mining company at a point south of the thirteen hundred foot strip of ground." The petition was in the usual form, naming the Northwestern Coal & Mining Company, W. S. Watson, the United States Trust Company, the Kansas & Texas Coal Company, James C. Strean, and R. C. Rombauer as defendants, and praying for the appointment of commissioners to assess their damages. Summons thereon was duly issued and served, and upon the return day thereof the said Northwestern Coal & Mining Company and W. S. Watson filed separate answers thereto. The answer of the Northwestern Coal & Mining Company, after putting in issue the allegations of the petition, contained the following plea: "Further answering, this defendant says that it is informed and believes, and so charges the fact to be, that the plaintiff is not a public railroad corporation, and has no intention to build and own a public railway built for public use and benefit, but that the plaintiff corporation has been promoted and organized by, and is owned and belongs to, the defendant the Kansas & Texas Coal Company; that said coal company and said railway have the same officers and directors, and largely, if not entirely, the same stockholders; that the defendant the Kansas & Texas Coal Company is a coal corporation, and as such owns and controls a large number of coal mines, and a large amount of coal lands, lying in the townships of Bevier (township 56, range 14, and township 57, range 15) and Chariton (township 56, range 15),—that is to say, about the city of Bevier, and about Ardmore, and between said places; that said coal company, for its own private benefit, and for no other purpose whatever, promoted, organized, and is managing and controlling, said coal railway, and as such secured the said incorporation, and as such is maintaining this proceeding to condemn the right of way over this defendant's land; that said coal company has put up and furnished all the money, means, and capital of the said coal railway; that on May 12, 1898, the said coal railway executed to the St. Louis Trust Company its mortgage on all its rights, tracks, property, and franchises of every kind and description, as trustee for the said coal company, in consideration that the said coal company would loan, and did loan, the said coal railway $70,000, for which it executed to said coal company its note of that date. And this defendant says that the only business, purpose, object, and use of said alleged railroad are the private use, benefit, interest, and advantage of the said coal railroad, and that there is no other business, use, or demand existing for the building of said alleged railroad. So this defendant says that it is a fraud upon the law, and in contravention of the rights of the owners of property, to suffer and allow said railroad company to use the right and power of eminent domain to condemn the private property and land of this defendant or of any other person. Defendant says that it is a coal corporation, doing a mining business near Bevier, and as such owns the land over which plaintiff intends to condemn a right of way for its alleged railroad; that, as appears from the plat filed with plaintiff's petition, it has constructed and owns, in connection with the defendant Watson, a railroad along and over said lands; that said railroad was built at a large expense and outlay of money, in order to carry on and conduct defendant's business of mining coal, and it has along said railroad a shaft sunk to its mines, and from said mines and shaft are taken daily many tons of coal, which this defendant, by means of its said railroad, conveys to the Hannibal & St. Joseph Railroad for shipment to the markets; that said shaft was sunk, and said mines were built and constructed, at the cost of many thousands of dollars to this defendant, and are of great value. This defendant says that it has for its railroad, and the operation of its business thereon, only a right of way of 40 feet, which it has purchased for that purpose, and that all of said 40 feet is necessary for the proper operation of its mines and its railroad, and that they cannot successfully and conveniently be operated with a less width of right of way than defendant has bought and paid for; that plaintiff's proposed right of way, as appears from its plat filed with its petition, is within seven feet of the center line of defendant's line as now laid down and operated on said premises; that, if said proposed track be condemned, this defendant's business will be largely, if not wholly, destroyed, and there will be no room for turnouts, side tracks, passing tracks, storage tracks, and other necessary structures and buildings necessary for the proper and profitable use and operation of its said mines. And so this defendant says that plaintiff cannot, under the guise of building a railroad, condemn the track and right of way of this defendant, and thereby destroy its business, for the benefit of its rival and competitor in business, the Kansas & Texas Coal Company, to which the said plaintiff belongs. Defendant further says that the defendant Watson is a part owner in defendant's said railroad, and owns and operates a mine some half mile beyond the plaintiff's said mine, which said mine is known as `Watson's Mine No. 2'; that defendant's said railroad extends on to said Watson's No. 2, at which mine said Watson is conducting and carrying on a mining business, and daily takes from said mine many tons of coal, which are sent over said railroad by defendant's mine to the Hannibal & St. Joseph Railroad, to be shipped to the markets, and the condemnation of the alleged right of way described in plaintiff's petition would not only ruin and destroy defendant's railroad, and cripple and injure defendant's business, but would also ruin and destroy the interest of the
said Watson in the said railroad, and also cripple and injure said Watson, and cut him off from said Hannibal & St. Joseph Railroad, and would, in fact, reduce this defendant and the said Watson to the necessity of securing an approach to said Hannibal & St. Joseph Railroad upon the use of plaintiff's alleged railroad, and subject them to the prices, extortions, and monopoly of the said plaintiff and its owner, the said Kansas & Texas Coal Company, the rival and competitor in business of this defendant and the said Watson. And, further answering, this defendant says that there exists no necessity for the plaintiff to locate and establish its alleged railroad upon the line and track marked out and described in its petition, for the reason that this defendant is informed and believes, and charges the fact to be, that plaintiff, or its owner, the Kansas & Texas Coal Company, owns a right of way one hundred feet wide, adjoining and along the north and east side of defendant's right of way, on which plaintiff could well and easily construct and build and operate its railroad, without interfering with any right of the business of this defendant. And so this defendant says that it is wholly inequitable, unjust, and contrary to law and good conscience to allow the plaintiff to proceed to condemn and construct and build its railroad upon the line marked out in plaintiff's petition and the accompanying plat, since the same is not for public use, but solely and only for the use, benefit, advantage, and emolument of the plaintiff, the said Kansas & Texas Coal Company; and defendant says that its business would be irreparably injured, and its damage could in no adequate sense be computed or estimated, and its business would be greatly injured, not to say ruined, by allowing plaintiff to build and construct its railroad upon the line marked out, or to condemn defendant's property for the purpose of such construction. Wherefore defendant prays the court that it will dismiss plaintiff's petition, that it will refuse to appoint commissioners to assess damages, and that it will restrain and enjoin the plaintiff from condemning, or attempting to condemn, a right of way for its alleged railroad on and along the line described in...
