The independent., 1903-03-19

poration to taking $50 much real es-
tate as may be necessary for the ioca-
ton, construction and convenient use
Of it's road with the proviso that the
land so taken shall not exceed two
hundred feet in width, and the con-
stitution provides that "the exercise
of the power and the right OF eminent
domain shall never be SO construed or
abridged as to prevent the taking by
the legislature Of the property and
franchises of incorporated companies
already organized, or hereafter to be
organized, and subjecting them to the
public necessity the same as OF indl-
viduals," from which it would seem
that the trainers of our constitution
intended, insofar as practicable, to
place railway corporations on a level
with private individuals. Ii then
railway corporation takes more land
than it can use, and non-use for ten
years should certainly be sufficient
time to establish that fact, 1t ought to-
lose what it has not used, and in
what better way than by the operation
of the statute of limitation? In good
conscience and sound sense, what
good and sufficient reason is there
why, in this matter, railway cor
poration should be put above pri-
vate citizen? But, says Commissioner
Kirkpatrick, in substance, If this were
permitted it might result in SO re-
stricting railway companies that they
could not operate their roads. A suf-
ficient answer to this point is that
never in the history OF the state has
such thing occurred, and could not
occur for the reason that while land
was being used by railway company
no one else could use it, and if a
railway company at any time needed
land which it lost, or never had, it
could take it by the exercise OF its
right of eminent domain. The pro-
position that thousands of farmers,
and others, should be eternally kept
out of the use OF millions of acres OF
land because some railway compa-
MES might, at some time or other,
wish to use few of those acres, or
be continually bothered by pestifer-
Gus railway officials and underlings if
they do use it, is utterly unreasonable.
For example, the Union Pacific rail-
road crosses my land. For more than
80 years I have continuously culti-
waited portions of their right of way,
paid taxes on the same for the entire
time, always claimed it as my own
and always refused to cease cultiva-
tion when the company from time to
time notified me so to do And yet
Commissioner Kirkpatrick would
claim that have thereby acquired no
rights which the Union Pacific Rail-
way company is bound to respect and
that they might dispossess me at will.
This is contrary to reason, and
Blackstone says that what is con-
trary to reason is contrary to law,
and I believe that this is contrary
to our law of limitations, Commits
sioner Kirkpatrick to the contrary
WhileI regard the decision in the
above entitled case as bad, railroad |
decision of an aggravated kind, | can
not agree with Mr.. Galbraith in his |
condemnation of the supreme court |
for giving it. | very much doubt that |
any one Of the three judges ever read
Commissioner Kirkpatricks opinion,
or even looked at the briefs of the at
torneys. 1t is true they approved and
signed it, but, I apprehend, that was
done as a part of their regular rou-
tine. It is physical impossibility
that they should review all the opi1-
ions of the nine commissioners, while
at the same time busily engaged in
opinions of their own. I
quite agree with Mr. .Galbraith that
the decision ought not to stand. But,
If 1t is not to stand, there must be a.
rehearing. l sincerely trust the LIc-
Lucas Bros. will ask for rehearing, |
that it will be granted and that next
time the matter will be heard by the !
supreme judges themselves who were
duly elected by the people for such
purposes. A case of so grave import
to thousands of citizens ought not to
be determined by department of an
unconstitutionally constituted body of
created by act of the
legislature. CHAS. WOOSTER.
Silver Creek, Neb.
A federal judge at Indianapolis sent
two lawyers, David A. Sachs and w.
W. Watts, to Jail for sixty days for
contempt of court. The men are prom