The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-05-23

the Albert N. Watson Damage
Suit.
Judge Collins, of the supreme court.
yesterday handed down nine decisions,
reversing In three cases the findings of
the lower courts.
In case bearing upon the liability Of
a stockholder for the debts of an in
solvent corporation the supreme court
untangles an interesting controversy in
which the stockholders set up counter
claim against the corporation. The syl-
labus is as follows:
Joseph c. Helm, respondent, VS.. The
Smith-Fee Company ct al, defendants;
Watson S. Moore appellant.
Syllubus-1. A claim against an In
solvent corporation by a stockholder
therein is not a proper counter claim In
an action brought by a judgment creditor
under the provisions of G. s. 1894, Oh.
16, to enfore the stockholders liability.
Such claim should be presented by pc
tition or complaint filed in the original
action.
2. When claim against an insolvent is
filed as above set forth, all of the allie
cations Herewith connected are to be
less expressly admitted,
No answer or. reply to such a petition
or complaint is necessary.
g. Stockholders in a corporation guar&
anteed its paper at bank The corpo-
ration became inSolVent and the guaran-
tors, five in number, appellant being one,
took up the paper, giving them joint
and several notes in place thereof. APP
pellant paid more than one-fifth of the
note in cash and then in his own name
and for his sole benefit filed a claim
amont of the joint and several note, de-
handing that he be allowed such full
amount upon the ground that the other
makers were and are insolvent, and that
he alone did not err when it refused to
allow his claim except in the amount he
had actually paid.
T. An action for money paid to the use
of another will not lie where there is no
promise, express or implied to repay
the same. Order affirmed
Collins. j.
The case of the Northwestern Tele-
phone company VS.. the Milwaukee Rail-
road company is Of special interest be-
cause it declares that telephone COM
panies are telegraph companies in the
eyes Of the law and have the same
rights of eminent domain as the latter.
In this case, however, the railroad COM
pany wins, and will be able to keep the
telephone company off its right of way
in Martin and Jackson counties.
The judgment of the lower court in
favor OF the telephone company IS re-
versed. The syllabus says:
Northwestern Telephone Exchange Com
pany, petitioner, respondent, VS.. Chi
cago, Milwaukee & st. Paul Railway
Company, appellant.
Syllabus-Whether G. S. 1894, section
1875, which provides that no corporation
or association more than 70 per centum
of the stock of which is or may be owned
by any person or persons not citizens of
the United States shall hereafter acquire,
ShOnl6
herefter acquired in this state is appli-
cable where corporation is attempting
to exercise the right Of eminent domain
is not decided, but If it is, it is held that
as to a corporation organized under the
laws of the state it must be presumed
until the contrary appears that sui
ficient per centage of its shareholders arc
citizens.
2. The rule is when applying the prin-
ciples of the common law or when con-
STRUNG statutes that the telephone is to
be considered telegraph, unless express
statutory provisions govern the case. So
telephone companies when establishing
their lines have the right of eminent do.
main under the constitution and law to
the same extent as have telegraph CONF
panieS.
8. The federal statutes. Rev. Statutes
1855, 526S, $3.50 authorizing telegraph COM
panies upon complying with its terms to
construct and maintin their lines along
and over all post roads of the United
States and Rev. Statutes sec. 1854 making
all railroads post roads, do not confer
upon telegraph company the right to
occupy the right of way of railroad
with its line without it's consent or a
contract with prior owner which is
binding upon 1t.
8. The general rule is that land al
ready devoted to another public use can
not be taken under general laws, where
the effect would be to extinguish a fran
chtse. If. however, the taking would not
internally 1njure the prior holder, the con-
demnation may be sustained
Mills on eminent domain, sec. 49, AZ; N.
Nv h " Yo a2s 81 Sgb b me ets Iy e. vs.
Central R. r. 81 N F. L. 2O5: Winona
company VS.. Watertown s. L. 1928
b The plaintiff in those proceedings is
authorized under g. S. supra secs 1904
70 exercise the right of eminent domain.
NO express authority to condemn for It's
use land which has already been appro-
priated to another public use is found in
the statue and such authority must
arise. If at all, by necessary Implication.
Ihere must be reasonable and practical
necessity created by the corporation as
sorting the right that it may be con.
Ven1enccd, or necessity arising out of
desire to unreasonably economize
Held, upon the evidence on the case at
par that there is no reasonble or practi-
easement for plaintiffs line over and
across certain portions of defendants
right of way. Judgment reversed,
Collins, J.
The trial court is also reversed in the
case of August KALI VS.. the Winona &
st. Peter Railroad company and judg-
ment for the company Is ordered. The
syllabus is:
August KALI