Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-09-28
TIE COURTS.
United states Circuit Court.

United States circuit court, district Of Mime.
sofa. The Northern Pacific Railroad COM
pany VS.. the st. Paul, Minneapolis & Mani
toba Railway company, the GAINESVILLE &
Moorhead Railroad company ct al.
Hearing an order to show cause why tenn
porary injunction should not issue. Messra.
Gilman IL Clough for plaintiff. Messrs. Bige-
low, Flandrau & Clark and r. B. Galusha for
defendants.
Application for an Injunction to restrain de-
PENDANTS from building the proposed railroad
from GAINESVILLE to Moorhead across the track
of the plaintiff, and the strip of lard upon
which the same is constructed aud extending
200 feet on either side thereof, is heard upon
bill, special answer and affidavit of the presi-
dent of the defendant, the Barnesville q Moor
head railroad company. 1t appears that the
latter company has taken steps, according to
the laws of the State of Minnesota, to obtain a
right of way or crossing over the plaintiffs
railway track. The proceedings are not COM
pIeted, and appraisers commissioners
have been appointed to fix the amount of COM
pensation or damage Said defendant also
claims title to the property over which the
plaintiffs road runs at the point it desires %
cross with its road, and seeks to take possess
sion OF the same with the view of making it's
crossing without the plaintiffs permission or
consent.
The plaintiff. being in the possession and oc-
cupation of the premises, cannot be disturbed
in such possession, except through proper le-
gal proceedings, and, if the said defendant has
better legal title to the same. an action of
ejectment will lie to enforce its right. 1 can
not on this application try the question of
title, but must hold that the open and &C.
kno0ledged possession of the plaintiff is
| sufficient to sustain an I'M JUNCTION to prevent
interference Herewith, forcibly or without its
consent. The plaintiff, if it desires, may
amend its bill. setting forth specifically its
title to the particular tract of land over which
its road passes at the point where said defend
ant seeks to cross.
have no doubt of the right of the Barnes
| VILE Railroad company to cross the plaintiffs
road on payment of compensation therefor,
when the amount is fixed by commissioners
selected under the railway legislation of this
State and the charter of the Northern Pacific
| Railroad company, obtained from the general
government, does not exempt its right of way
from the operation of the laws of the State OF
Minnesota, and forbid q railroad company Or
eanized under the general laws of the State to
exercise the right of eminent domain.
| The important question in this case is, wheth-
er the said defendant can enter upon the pri-
| vate property of this company and disturb its
possession and make the crossing before DAM
ages are actually assessed and paid, or secured.
The laws of the State certainly do not au-
thorize it, and the constitution in terms forbids
| it. private property shall not be taken for
public use without just comp ensation therefor,
| first paid or secured is the constitutional
provision.
! Chapter so, laws of 1879 and cha oter 81,
sections Is to %, Youpg's Minnesota statutes,
confer the right of eminent domain upon rail.
way corporations, and specify the necessary
proceedings where corporation exercises it,
and it is only after the compensation for the
property to be taken is assessed and paid, or an
| appeal taken from the award of commissioners,
| that the company can proceed with the con-
struction of its railroad, and enter upon and
| take possession of the premises sought to be
condemned, and on appeal only by executing
| bond conditioned to pay the award.
| The defendant the Barnesville & Moorhead
railroad company by virtue OF its organization
under the general laws of the State, has the
right to temporarily occupy land for the pur-
pose of preliminary surveys, exercising care
| as not to interfere with the running of trains
or such necessary use by the plaintiff company
as its charter requires, and is not tresspasser
| in so doing, but the payment or deposit in
court of the compensation awarded by COM
missioners is condition precedent to the
! company to enter upon property for the pur-
| pose of construction.
The plaintiff has not slept upon its rights
and allowed the said defendant to occupy its
| land, but asserts them at the outset.
| In the cases cited by the Defendants counsel
| us Mimi. page liza, and Is MINI. page 2l5) the
railroad companies had taken possession of the
| land without opposition and constructed their
| roads, and the court refused an injunction, or
permitted bond to be given by the corpora
| tions with the condition that compensation
should be paid when ascertained in proceed
| ings to be forthwith instituted. These decis-
ions are not applicable to the present case.
| There is no inconvenience to the public for
the reason that the railroad is not completed
and in operation, as in the cases cited.
| / have fully considered the suggestion of
counsel that conditional order be made allow
ing an Injunction unless within short time,
| to be fixed by the court, the defendants execute
bond conditioned TO prosecute, forthwith,
| the proceedings commenced to obtain the right
of way for crossing plaintiffs track, and to
| paw such sum as the commissioners may award.
| do not think this court has any power to
grant the right of entry upon the plaintiffs
road for this purpose on any such condition.
| Tue right of the GAINESVILLE d Moorhead
railroad company to cross the plaintiffs track
is given by the statute of the State which par
ticnlarly and in detail points out the requisite
steps to be pursued as conditions precedent to
the right to construct the crossing, and without
| There is not such latitude for the exercise of
discretion by court of equity where the de-
| fendants' right to do an act depends upon its
| compliance with the constitution of the State,
and statutes, as in other applications for in
| junction.
temporary injunction will issue, with leave
| to the defendants to apply for dissolution
| thereof hereafter, to either of the judges of
| this court. NELSON, j.
MUniciD0E Court.