Washington & Idaho Railroad Co. v. Coeur D'alene Railway & Navigation Co.

• Decision Date: 19 March 1889
• Citation: 2 Idaho 580,21 P. 562
• Court: Idaho Supreme Court
• Parties: WASHINGTON & IDAHO RAILROAD CO. v. COEUR D'ALENE RAILWAY AND NAVIGATION COMPANY ET AL

21 P. 562

2 Idaho 580

WASHINGTON & IDAHO RAILROAD CO. v. COEUR D'ALENE RAILWAY AND NAVIGATION COMPANY ET AL

Supreme Court of Idaho

March 19, 1889

INJUNCTION-RIGHT OF WAY-ACTION AT LAW.-Where a railroad prays for a perpetual injunction against another railroad, enjoining the entering upon its right of way and for a decree of title, and it appears at the time of trial the defendant has completed its line of road over the disputed ground and is in the actual occupation and use of the same, held, the court was right in refusing a judgment of perpetual injunction, but should not have passed upon the title, leaving the plaintiff to his action at law.

APPEAL from District Court, Shoshone County.

Judgment affirmed, without costs.

Woods &amp Heyburn, for Appellant.

Under the system of express findings, nothing is implied, but full findings are required upon every material issue without any request therefor, and with no exception on account of defects; and, if any material issue is left unfound, it is ground for a reversal of judgment. (Robinson v. Railroad Co., 57 Cal. 417; Everson v. Mayhew, 57 Cal 144; Knight v. Roche, 56 Cal. 25.) The finding on every material issue is necessary, although no evidence was introduced upon such issue. (Campbell v. Buckman, 49 Cal. 362; Speegle v. Leese, 51 Cal. 415.) There is no presumption of an implied finding under our practice. ( Railroad Co. v. Reynolds, 50 Cal. 90; Campbell v. Buckman, 49 Cal. 362; Dowd v. Clarke, 51 Cal. 263.) There being findings in the record, there is no presumption of the waiving of findings upon any issue. ( People v. Forbes, 51 Cal. 628; People v Fuqua, 61 Cal. 377; Van Court v. Winterson, 61 Cal. 615.) The approval by the Secretary of the Interior of the act of a railroad in locating its line may perfect a grant of absolute title, which cannot be questioned or defeated by any person other than the government itself. ( Shepley v. Cowan, 91 U.S. 330; Johnson v. Towsley, 13 Wall. 72; Moffat v. United States, 112 U.S. 32, 5 S.Ct. 10; United States v. Minor, 114 U.S. 233, 5 S.Ct. 836; Steel v. Refining Co., 106 U.S. 450, 1 S.Ct. 389; Martin v. Mott, 12 Wheat. 30.) As long as a grant remains uncanceled, it cannot be invaded by a mere trespasser, or one who does not claim to enter by virtue of a better title. (Aurora Hill Consol. Min. Co. v. Mining Co., 34 F. 520.) The courts cannot exercise the power of eminent domain either directly or indirectly. The question of the propriety or policy of a condemnation is not a judicial one, but one vested solely in the legislative authority. (Mills on Eminent Domain, sec. 11; Pittsburgh v. Scott, 1 Pa. St. 309; Boston etc. R. Co. v. Salem etc. R. Co., 2 Gray, 34, 35.) The right of way of one railroad cannot be taken by another, except it be in a canyon, and then only on showing of actual necessity in suit instituted especially for that purpose. (Montana Cent. R. Co. v. Helena etc. R. Co., 6 Mont. 416, 12 P. 916; Railway Co. v. Alling, 99 U.S. 463; Denver etc. Ry. Co. v. Denver etc. R. Co., 17 F. 867; Pennsylvania R. Co.'s Appeal, 93 Pa. St. 150; Housatonic R. Co. v. Lee etc. R. Co., 118 Mass. 391; Boston etc. R. Co. v. Lowell etc. R. Co., 124 Mass. 368.) When the plats of the plaintiff were approved, the grant attached and was anchored to the definite line indicated upon the plat. (Schulenberg v. Harriman, 21 Wall. 60; Ex parte Railway Co., 101 U.S. 713; Leavenworth etc. R. Co. v. United States, 92 U.S. 741; Knevals v. Hyde, 1 McCrary, 402, 6 F. 651; Van Wyck v. Knevals, 106 U.S. 360, 1 S.Ct. 336; Kansas Pac. Ry. Co. v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566; Railway Co. v. Alling, 99 U.S. 475.)

Albert Allen and William H. Clagett, for Respondents.

At the time of making the survey over the line in controversy herein the plaintiff had not filed, or attempted to file, in the office of the Secretary of the Interior, its articles of incorporation or proofs of its organization, and did not do so for more than a month after the survey. Hence the survey of plaintiff was, at the time it was made, and ever since has been, and is now, absolutely void, as against the defendant, which has, subsequent to such survey, surveyed and constructed its road over the same. (Belk v. Meagher, 104 U.S. 279; Railroad Co. v. Sture, 32 Minn. 95, 20 N.W. 229.)

WEIR, C. J. BERRY, J., Dissenting.

OPINION

WEIR, C. J.

This is an appeal from a judgment in favor of the plaintiff against the defendants, in which the plaintiff asks a judgment and decree of this court enjoining the defendant, and all persons claiming under it, from in any manner entering upon the right of way of the plaintiff at the town of Wallace, in the county of Shoshone, extending in length a mile and a half, and in width one hundred feet on each side of the central line of the railroad of plaintiff, as surveyed and designated on the ground, and from further constructing said railroad on said right of way, and from interfering with the plaintiff in the peaceable and exclusive possession and occupancy of said right of way; and that the title be decreed in the plaintiff as against the defendant. It therefore appears that this action is for a final judgment of injunction in favor of the plaintiff and against the defendant. An answer was interposed by the defendant, and upon issues framed the cause came on for trial. A preliminary injunction was granted in this cause, but was subsequently vacated upon motion. It appears from the findings in this case that, at the time of the trial thereof, the defendant had completed its line of road over the disputed ground, and was in the actual use and occupation of the same. The plaintiff, it would seem, had an adequate remedy at law, if its contention is correct, and the court below was right in refusing a judgment of perpetual injunction, as prayed for; but we think that the court should not, in that case, have passed upon the ownership and title of the premises in question, but should have left the plaintiff to his action at law. The judgment of the court below should be modified as we have stated, and, as modified, the same is affirmed, without costs to either party in this court or in the court below.

DISSENT BY: BERRY

BERRY J., Dissenting.--

The plaintiff is a company duly created and organized under the laws of Washington territory for the purpose of constructing and operating a railway in Idaho territory, including on its line the premises more especially in question in this action. The defendant is also a company duly organized for a like purpose under the laws of the territory of Montana. Both parties began their survey of this section of their respective roads, as appears by the findings of the court, on the same day (October 22, 1886), and completed their surveys--the plaintiff on the eighth day of December, 1886, and the defendant, on the fifth day of November, 1886. The plats of the respective roads were filed in the United States land office in said district--the defendant's on the eighth day of November, 1886, and the plaintiff's, December 23, 1886--and certified and approved by the commissioner of the interior, February 11, 1887. The plats in each case showed the center line of the route claimed by each, at point on the South Fork of the Coeur d'Alene river. The lines of the roads, as marked on the respective maps, diverge from each other as follows:

[SEE MAP IN ORIGINAL]

The plaintiff's line is marked "C," and the defendant's line is marked "B." The premises in controversy are from the point of crossing of these two lines "C" and "B" eastward up the stream a distance of about one and a half miles. The valley of the South Fork of the Coeur d'Alene river at this place is alleged by the defendant in its answer to be about eighty rods wide. The stream appears to run near the northern boundary of the valley. After the respective plats were duly approved and filed, July 11, 1887, the chief engineer of the defendant, George P. Jones, by a written notice, advised the plaintiff that it was the intention of the defendant to construct its said road "on its location as filed." It is also admitted by the defendant, and is part of the bill of exceptions allowed herein, that August 23, 1887, and before the defendant had begun work on the premises in question, the plaintiff delivered to the defendant the following notice:

"Engineer's Camp W. & I. R. R. Co.

"(July 13th), August 23, 1887.

"To George P. Jones, Engineer in charge, Coeur d'Alene Railway & Navigation Co.

"Dear Sir: You, and all parties in your charge, or in the employ of the Coeur d'Alene Railway and Navigation Company, are hereby notified that the Washington and Idaho Railroad Company, a corporation organized under the laws of Washington territory, and authorized to transact business in Idaho territory, has heretofore duly filed complete maps of its branch line from old Mission to Mullan, Idaho, under the act of Congress approved March 3, 1875, entitled 'An act granting right of way to railroads through the public lands,' and, having complied with the rules and regulations of the honorable department of the interior, the said maps were duly approved by the said department, and a right of way through the public domain secured by said company. Therefore you, and all servants and employees and privies of the Coeur d'Alene Railway and Navigation Company are warned to desist from occupying any portion whatever of the said Washington and Idaho Railroad Company's right of way as the same is staked out and surveyed, and as shown by its said maps now on file.

"THE WASHINGTON AND IDAHO RAILROAD CO.

"By W. H. BURRYS,

"Engineer in Charge."

That after the interchange of notices, the defendant entered upon the route on plaintiff's map marked line "C," and was in process of...