Arizona & Colorado Railroad v. Denver & Rio Grande Railroad

OPINION OP THE COURT. ABBOTT, J. 1 The question first requiring consideration in this case, is whether, on the facts well pleaded in its complaint, the plaintiff has such an interest in the premises in controversy, as will entitle it to maintain its action. That a part of the statutory requirements essential to the acquisition of such a right, or interest are alleged in the complaint, to have been complied with and that these are well pleaded as facts, the defendant does not,, in the brief presented in its behalf, seriously question. That the survey and staking of the location upon the ground, and similar acts, are a part of the construction of a railroad, appears to be well settled. C. R. I. & P. R. Co. v. Grinnell, 51 Ia. 476; K. Co. & S E. Ry. v. K. S. & S. W. Ry. 129 Mo. 69; Sioux City, etc., Ry. v. Chicago, etc., Ry. 27 Fed. 770. Such acts the complaint avers were performed by the plaintiff before February 1st, 1905, and so, well within the period of two years, allowed by section 3877 of the Compiled Laws of 1897, for the beginning of construction. It is claimed, however, that the filing of the map of the proposed location was essential, and that as no such filing was pleaded, a necessary element of the plaintiffs title is lacking in its complaint. The provision of the statute, Section 3874, of the Compiled Laws of 1897, is that a map shall be filed within a reasonable time “after its road shall have been finally located.” It is, at least, open to question whether the plaintiff was required to file any map under that section until its entire road had been located, but, assuming that such a map should be filed for a portion of the road finalty located, the question whether it had been done within reasonable time, is one of fact which could not be raised on demurrer. Wheeling etc., Ry. Co. v. Camden Co., Oil Co. 35 W. Va. 205. 2 The defendant lays great stress on the failure of the plaintiff to state that its alleged location was adopted by its board of directors, the statute, Section 3847, Sub-See. 3, prescribing adoption,in that way. The allegation in the complaint is, that the plaintiff corporation had “adopted" the location in question. Whether the location was adopted, would, of course, be open to question on an answer denying it, but we think the demurrer must be held to have admitted the fact of its adoption, and that to hold it was necessary to state that it was adopted by a vote of a board of directors, would be to require that evidence of the fact, instead of the fact itself, should be pleaded. Sullivan et al., v. The I. & S. Mining Co., 109 U. S., 550; Bank of Metropolis v. Guttschlick, 14 Pet. 27; Delafield v. Kinney, 24 Wendall, 345; Arington v. Savannah Ry, Co. 95 Ala. 434. We conclude therefore that the facts well pleaded established a vested interest in the plaintiff, sufficient to enable it to maintain the action. 3 The defendant claims, however, that the averments of the complaint in effect, show that defendant and not the plaintiff is in possession of the portions of the plaintiff’s alleged location, which are the subject matter of controversy between them in this cause. It is true there are some expressions in the complaint, which, taken by themselves, would give some countenance to that contention, but, taken as a whole, the complaint plainly declares that the plaintiff is the owner of the location surveyed and staked out by it on the ground and in possession of it, but that such possession has been interfered with by wrongful acts on the part of the defendant, and is jeopardized by the threatened continuance of such acts. The defendant further urges that the title to the portions of the plaintiff’s alleged location now in question is by the complaint shown to be in dispute between the-plaintiff and defendant, and that the former must therefore establish its title at law, before it can have the aid of a court of equity to protect it. We do not so interpret the complaint. We understand it to charge that the defendant having actual notice and knowledge of the plaintiff’s interest and rights in the premises, is, unlawfully and without any claim of right, seeking to deprive it of them by a series of wrongful acts already begun and threatened to be continued up to the point of the complete ouster, and dispossession of the plaintiff. 4 We come now to the question whether the plaintiff is, on the showing of facts in its complaint, entitled to. the relief prayed for, or to any relief. It declares that the defendant is seeking to deprive it of its property, not by condemnation proceedings, or any process of law, but by repeated wrongful acts, which the defendant threatens to continue, and that unless relief in equity is granted a multiplicity of suits will result. Such, it seems to us would'be the natural and almost inevitable result. The plaintiff also says it would suffer irreparable damage by what the defendant is doing and threatens to do, with reference to its location. To this the defendant replies that plaintiff has alleged the feasibilty of laying-■out other good locations between the points connected by the location in question hero, and suggests that the plaintiff avail itself of that natural condition by taking another route and leaving to the defendant so much of the plaintiff’s adopted location, as it, the defendant, may care to use. That suggestion may in time commend itself to the plaintiff, but its present position in this cause, is that its adopted location is the best possible one between the points referred to, and that it asks.the protection of this court against encroachments upon it by the defendant. The defendant further contends that the plaintiff does not allege any damage, actual or threatened, which would be beyond money compensation, or the inability of the defendant to make such compensation. It is true that all property is subject to be taken for the public use in the method, and for the compensation provided by law, but we are not aware that any one is required to surrender his property to whomsoever may choose to lay violent hands on it, no matter how great the price or certainty of payment. The owner has the right to retain the property itself under such circumstances and is entitled to the protection of the courts in so doing. Simmons Creek Coal Co. v. Doran, 142 U. S., 417; Pitts-burg S. & W. Ry. Co. v. Fiske, 123 Fed. 760; Southern Pac. Ry. Co. v. Oakland, 58 Fed 50; Coatsworth v. Lehigh Valley Ry. Co. 156 N. Y. 451. We are, of course, now dealing with what may not be the actual facts, but which we must treat as actual and established, so far as they are well pleaded in the complaint, and we think that, unanswered, they are sufficient to establish a liability of the defendant and the right to the relief prayed for. The case is therefore remanded to the district court for further proceedings in accordance with this decision. William J. Mills, C. J., Frank W. Parker, A. J., Win. 'H. Pope, A. J., Edward A. Mann, A. J., concur. McFie, A. J., having heard the case below, did not participate in this decision.