U. S. SUPREME COURT.

#### David A. Secomb, plaintiff in error, agt. The Milwaukee and St. Paul Railway Company.

*October*Term, 1874.

*The, exercise of the right of eminent domain.*

A body which has a legal corporate existence is capable of performing an act of condemnation of private property for public use.

It is in the discretion of the legislature to determine the mode of exercising the right of eminent domain, subject to the organic law.

The construction of a railroad is a public necessity in contemplation of law, and the taking of private property for its construction is legal.

In error to the circuit court of the United States for the district of Minnesota.

Mr. justice Davis

delivered the opinion of the court.

This is an action of ejectment to recover possession of a town lot in Minneapolis, occupied by the defendant in error as a part of its road-bed. The case was tried by the court without the intervention of a jury, and, the only material point for inquiry is whether, on the whole case, the decision of the court below, which was advérse to the plaintiff, was correct. It is true there was an objection to the ruling of the court admitting evidence, but it is unnecessary to notice it, because this evidence was the basis on which the court rested its judgment, and without it the defense is not sustained.

The case was this: Hiram Osborn and Ovid Pinney were, in 1863, the owners of the premises in controversy; and, in 1870, by deeds of quit-claim conveyed all the right they had *76in the property to the plaintiff. Long before these conveyances, the Minnesota Central Eailroad Company, under whom the defendant claims, located and built a railroad across the premises, and occupied it for railroad purposes.

The defendant insists that this occupation was lawful, for the reason that the company took the proper steps to condemn the land, and had the right to condemn it. Whether this is so of necessity, depends on the laws of the state; and if these laws have been construed by the highest court of the state, in a case of similar character, the federal courts are relieved of all difficulty.

We do not feel called upon to enter into an examination of the several acts on this subject, both public and private, which are quite numerous, in order to show that the Minnesota Central Company had a corporate existence, and was, therefore, capable of performing an act of condemnation. It is enough to say that the point is settled in favor of the company by the decision and reasoning of the supreme court of Minnesota, in the case of the *First Division of the St. Paul and Pacific Railroad Company*agt. *Parcher*(14 *Minnesota R., 207).*

The Minnesota Central Company was authorized by law to procure the condemnation of land for the use of its road, and from the findings of fact by the circuit court, it sufficiently appears that the statutory provisions on the subject were observed.

It is no longer an open question in this country that the mode of exercising the right of eminent domain, in the absence of any provision in the organic law prescribing a contrary course, is within the discretion of the legislature. There is no limitation upon the power of the legislature in this respect, if the purpose be a public one, and just compensation be paid or tendered to the owner for the property taken. This general rule has received the sanction of the supreme court of Minnesota in analogous cases to the one at bar *(Weir*agt. *The St.*Paul, *Stillwater and Taylor's Falls*
      *77
      *R. R. Co.,*18 *Minnesota,*155; *Langford*agt. *Commissioners of Ramsey*County, 16 *Minnesota,*375).

It hardly need be said that the taking of private property in order that a railroad may be constructed is a public necessity. It is urged that the property in controversy was occupied before the proceedings in condemnation were begun; but there is nothing in the findings of fact to show that this was so. Even if the plaintiff were in a situation to make the objection it would not avail him; for prior occupation without authority of law would not preclude the company from taking subsequent measures authorized by law to condemn the land for their use. If the company occupied the land before condemnation, without the consent of the owners, and without any law authorizing it, they are liable in trespass to the persons who owned the land at the time, but not the present plaintiff.

It is urged, also, against the validity of the award of the commissioners, that it was not made in reasonable time, or the amount of it ever paid or tendered to the parties in interest. Whether this be so or not does not concern the plaintiff. It is enough for him to know that a judgment was entered confirming the award, and the money paid into the court for the use of Finney and Osborn; and is there now unless they have seen fit to withdraw it. It is a fair presumption, as both these persons had notice, actual or constructive, of the proceedings in condemnation, and took no steps to review them, that they were either satisfied with the award, or concluded they could not make successful opposition to it.

This suit is an effort to question the priority of the condemnation and sale of the property in a collateral proceeding, not by the party even whose land was appropriated, but by a stranger to the original proceeding, who, whatever his motive in buying, got no other estate than the original owners could convey—a fee subject to the easement of the railroad company. The judgment of condemnation in this case was ren*78dered by a competent court, charged with a special statutory jurisdiction, and all the facts necessary to the exercise of" this jurisdiction are shown to exist. A judgment thus obtained is no more subject to impeachment in a collateral proceeding than the judgment of any other court of exclusive jurisdiction (1 *Redfield on Railways, 5th ed.,*p. 271).

If it were so, railroad companies would have no assurance that the steps taken by them to procure the right of way would conclude any one, and they would be constantly subject to vexatious litigation.

The judgment of the circuit court is affirmed.