Trester v. Missouri P. R. Co.

• Citation: 49 N.W. 1110,33 Neb. 171
• Parties: M. L. TRESTER v. MISSOURI P. R. CO
• Decision Date: 07 October 1891
• Court: Nebraska Supreme Court

49 N.W. 1110

33 Neb. 171

M. L. TRESTER v. MISSOURI P. R. CO

Supreme Court of Nebraska

October 7, 1891

ERROR to the district court for Lancaster county. Tried below before FIELD, J.

AFFIRMED.

Lamb Ricketts & Wilson, for plaintiff in error:

Objections to the jurisdiction of a sheriff's jury are not waived by an appeal from their award. (Schroeder v. R. Co., 44 Mich. 387; Slough v. R. Co., 33 N.W. [Ia.], 149; Kanne v. R. Co., 23 N.W. [Minn.], 854.) As to the authority of the company to exercise the right of eminent domain over the premises: Thomas v. R. Co., 101 U.S 71; Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Id., 428; People v. Brighton, 20 Mich. 57; Gillinwater v. R. Co., 13 Ill. 1; Stanford v. Worn, 27 Cal. 171; Hull v. R Co., 21 Neb. 385; Doughty v. R. Co., 1 Zab. [N. J.], 442; N. Y. & H. R. Co. v. Kip, 46 N.Y. 546; Shields v. Ohio, 95 U.S. 319; St. L. R. Co. v. Berry, 113 U.S. 465; McMahan v. Morrison, 16 Ind. 172. The power granted by the state to take property by eminent domain cannot be delegated. (Coe v. R. Co., 10 Ohio St. 372; Atkinson v. R. Co., 15 Id., 36; Shields v. Ohio, 95 U.S. 323, 324.) Our statute requires condemnation proceedings to be conducted by the directors of the local corporations. (Morawetz, Corp., sec. 948; St. L. R. Co. v. Berry, 113 U.S. 465; Powers v. R. Co., 33 Ohio St. 432; A. & N. L. R. Co. v. Smith, 15 Id., 328; A. R. Co. v. Sullivant, 5 Id., 276; Lyon v. Jerome, 26 Wend. [N. Y.], 485; U. P. R. Co. v. B. & M. R. Co., 19 Neb. 389.) Neither the original nor the consolidated company ever filed its corporate articles in the county clerk's office in any county in Nebraska. (White v. Blum, 4 Neb. 560; Abbott v. Smelting Works, 4 Id., 416; Ind. Furnace Co. v. Herkimer, 46 Ind. 142; Morris & E. R. Co. v. R. Co., 31 N.J.L. 205; Belt & H. T. Co. v. R. Co., 35 Md. 231.) It is indispensable that the record of condemnation proceeding should contain the notice. (Hull v. R. Co., 21 Neb. 384-5; Lewis, Em. Domain, secs. 374, 369, and cases; County of Ramsey v. Stees, 28 Minn. 326; Ells v. R. Co., 48 Mo. 231.) The application was fatally defective. (Matter of Brooklyn R. Co., 72 N.Y. 249; Holbert v. R. Co., 45 Iowa 23; M., C. & L. R. Co. v. Clark, 23 Mich. 519, and cases; Bowers v. R. Co., 33 Ohio St. 429; Reitenbaugh v. R. Co., 21 Pa. 100; Lewis, Em. Domain, secs. 351, 352; Anderson v. St. Louis, 47 Mo. 479.) The defendant estopped to claim that it is a Nebraska corporation. (State, ex rel. Breaux, v. Judges, 34 La. Ann. 1220; Bank v. St. John, 25 Ala. 566; Ex parte Smith, 94 U.S. 456.)

A. R. Talbot, and B. P. Waggener, contra, cited, as to the application: Mead v. Haynes, 3 Rand. [Va.], 33; Whitworth v. Puckett, 2 Gratt. [Va.], 531; Lewis, Em. Domain, sec. 342; Soule v. Cosner, 56 Ind. 276; Palmer v. High Comr's, 49 Mich. 45; Ward v. R. Co., 119 Ill. 287; Smith v. R. Co., 105 Id., 511; Bacheler v. New Hampton, 60 N. H., 207; Hardy v. Keene, 54 Id., 449; Steele's Petition, 44 Id., 220; Jansen v. Grimshaw, 125 Ill. 468; Schwass v. Hershey, Id., 664; Henry v. R. Co., 121 Id., 264; State v. Richmond, 26 Id., 232; Hustin v. Clark, 112 Ill. 350; A., T. & S. F. R. Co. v. Patch, 28 Kan. 470; Haas v. Lees, 18 Id., 449; Ogden v. Stokes, 25 Id., 518; Stephens v. Com'rs, 36 Id., 664; Tingley v. Providence, 9 R. I., 388-390; Omaha Belt Ry. Co. v. McDermott, 25 Neb. 716. As to the notice: Hull v. R. Co., 21 Neb. 384-5; Bd. of Supervisors v. Magoon, 109 Ill. 143; Wood v. Wilson, 12 Ind. 659; Akin v. Bd. Com'rs, 36 Kan. 170; Com'rs v. Heed, 33 Id., 34; Sowle v. Cosner, 56 Ind. 276; R. Co. v. Benham, 28 Mich. 459; McCaslin v. Camp, 26 Id., 390; Peavey v. Wolfborough, 37 N. H., 287-293; Foss v. Strafford, 25 Id., 78; Goodwin v. Milton, 25 Id., 458; R. Co. v. Folsom, 46 Id., 64; Roberts v. Stark, 47 Id., 223; Gt. Falls Mfg. Co. v. Att'y Gen'l, 124 U.S. 581; Collman v. Fleming, 82 Ind. 118-25; R. Co. v. Allen, 100 Id., 409. As to the fact of incorporation: Reisner v. Strong, 24 Kan. 410; McAuley v. R. Co., 83 Ill. 348; R. Co. v. R. Co., 105 Ill. 110; Angell & Ames, Corp., sec. 94; Bank of Toledo v. Internatl. Bank, 21 N.Y. 542; Williamson v. Ass'n, 89 Ind. 339; Baker v. Neff, 73 Id., 68; R. Co. v. R. Co., 32 N.J.Eq. 755; Elevated R. Co., 70 N.Y. 327-8; State v. R. Co., 25 Neb. 164, 165. As to the effects of the appeal: M. & M. R. Co. v. Rosseau, 8 Iowa 373; R. Co. v. Hayes, 13 Neb. 489; R. Co. v. Umstead, 17 Id., 460; Gerrard v. R. Co., 14 Id., 271; Clarke v. R. Co., 23 Neb. 615; Maxwell, Pl. & Pr., 108; Sch. Dist. v. Caldwell, 16 Neb. 68; Durbin v. Fisk, 16 Ohio St. 534; Harper v. Miller, 4 Ired. L. [N. Car.], 34. As to the effect of the consolidation: State v. R. Co., 25 Neb. 156, 164; R. Co. v. Auditor Gen'l, 53 Mich. 79; R. Co. v. Ga., 92 U.S. 665-7; Green Co. v. Conness, 109 Id., 104; R. Co. v. Adams Co., 88 Ill. 615; Horne v. R. Co., 12 Am. & Eng. R. Cases, 488; 20 Id., 590; Muller v. Dows, 94 U.S. 444, 447; T. & P. R. Co. v. McAllister, 59 Tex. 349; Peik v. R. Co., Id., 164; O. & M. R. Co. v. Wheeler, 1 Black [U. S.], 286; R. Co. v. Whitton, 13 Wall. [U. S.], 283; County v. R. Co., 51 Pa. 228; Angier v. R. Co., 74 Ga. 634; Sage v. R. Co., 70 N.Y. 220; Williamson v. R. Co., 26 N.J.Eq. 398; Graham v. R. Co., 118 U.S. 169; R. Co. v. Dunn, 122 Id., 513; McClure v. Campbell, 25 Neb. 58; Des Moines Nav. Co. v. Ia. Homestead, 123 U.S. 557; McCormick v. Sullivant, 10 Wheat. [U. S.], 192; Plumb v. Goodnow, 123 U.S. 560; Boone Co. v. Patterson, 98 Id., 403; Hartog v. Memory, 116 Id., 588-692.

OPINION

NORVAL, J.

The Missouri Pacific Railway Company on the 17th day of October, 1885, filed in the county court of Lancaster county its petition praying for the condemnation, for right of way purposes, of a strip 100 feet in width across the north half of the southeast quarter of the northeast quarter of section 24, town 10, range 6 east. The county judge appointed six disinterested freeholders, residents of said county, to assess and report the damages sustained by Milton L. Trester, the owner of said real estate, by reason of the location of the railroad. The damages assessed and reported by the commissioners amounted to $ 2,500. An appeal was taken by the land-owner to the district court, where the railway company filed a petition for removal of the cause to the circuit court of the United States for the district of Nebraska, on the ground that it was a citizen of the state of Missouri, and the owner of the land was a citizen and resident of this state. The district court approved the bond, which accompanied the application, and made an order removing the cause to the federal court. Subsequently Trester filed in the court below a motion to vacate the order of removal, and to redocket the case for trial. The motion being denied, Trester prosecuted a petition in error to this court, and at the January term, 1888, the order of the district court was reversed, and the cause remanded, with directions to reinstate the cause, and dismiss the proceedings for want of jurisdiction. (See, 23 Neb. 242.)

A motion for a rehearing was made by the railroad company, on consideration whereof it was adjudged by the court that the former judgment of this court be vacated and set aside, and the decision of the district court was reversed, and the cause remanded for further proceedings. In obedience to the mandate of this court, the case was tried, and a verdict was returned in favor of the plaintiff in error for $ 3,100.

On the motion for a rehearing, no opinion was filed. The legal effects of the decision, however, was to overrule the former opinion in so far as it held that the condemnation proceedings were void, and that neither the county judge nor the district court had jurisdiction to take any action in the matter. In the opinion filed it was rightly ruled that, under the provisions of our constitution, a railroad company not incorporated under the laws of this state cannot exercise the right of eminent domain. If, therefore, the defendant was not a domestic corporation when it filed its petition in the county court, it acquired no right to the plaintiff's property by the condemnation proceedings, and the plaintiff could not recover compensation for the property attempted to be taken for right of way purposes, and the entire proceedings would be a nullity. The opinion filed, in declaring the condemnation proceedings void, was based upon the assumption that the defendant was not a domestic corporation. In other words, that the petition for removal conclusively established that the defendant was a foreign corporation. From the fact that the defendant alleged, in its petition for removal of the cause from the state court to the circuit court of the United States, that the defendant was a citizen and resident of another state, it could not be conclusively presumed that it was a foreign corporation no more than the allegation in the motion of the plaintiff to vacate the order of removal, that "the defendant railway company is not a non-resident corporation, but is a company formed by the consolidation of a Missouri corporation, a Kansas corporation, and a Nebraska corporation" estopped the plaintiff from subsequently denying that the defendant is a domestic corporation. Whether a railroad company, which has sought to acquire private property for right of way purposes by condemnation proceedings, instituted under the statutes, is a foreign or domestic corporation is to be determined in the same manner as any other question of fact.

One of the issues presented and tried in the lower court, after the reversal of the cause, was whether the defendant was a Nebraska corporation. Upon that question the parties changed positions, the plaintiff in error in his petition alleging that the defendant company is a non-resident corporation,...