Pacific Ry. & Nav. Co. v. Astoria & C. R. R.

Opinion by Mr. Chief Justice Bean. 1. That plaintiff’s line around Garibaldi Point was first surveyed and located is clearly shown by the testimony, and it is not seriously controverted by defendant. The evidence shows that plaintiff’s line was surveyed and located and formally adopted by its board of directors [251] before the preliminary survey was completed by defendant’s engineers and therefore plaintiff has a prior right for a reasonable time to the use of the line covered by its location for railroad purposes, unless by reason of the matters hereinafter referred to it should not be granted such privilege. There is no statute in this State governing the matter of a conflict between rival railroad companies over a proposed route, but the general rule is that, since such a corporation is performing a public function, equity will intervene to protect rights acquired by prior location against trespasses thereover by another road which seeks to locate its line over the same route. 2 Lewis, Eminent Domain, § 306; Pierce, Railroads, p. 157; Railway Co. v. Ailing, 99 U. S. 463 (25 L. Ed. 438); Chesapeake & O. Ry. Co. v. Deepwater Ry. Co., 57 W. Va. 641 (50 S. E. 890); Kan. R. Co. v. Glen. J. R. Co., 45 W. Va. 119 (30 S. E. 86); Nicomen Boom Co. v. North Shore Boom & Driving Co., 40 Wash. 315 (82 Pac. 412); Utah, N. & C. R. Co. v. Utah & C. Ry. Co., (C. C.) 110 Fed. 879; Williamsport R. Co. v. Philadelphia R. Co., 141 Pa. 407 (21 Atl. 645: 12 L. R. A. 220). The doctrine that priority of location confers priority of right to occupy and use the ground covered by such location is a protection against longitudinal construction alone, and not against crossing rights. Nor does it confer a perpetual right, but is a protection for a reasonable time only, and any decree giving one company a prior right over another by reason of a prior location should be limited to what may be deemed under the circumstances, a reasonable time in which to construct the proposed road. 2. It is claimed by defendant that plaintiff is not entitled to a decree awarding it a prior right to occupy the pass around Garibaldi Point, for the reason that, under its charter powers, it has no authority to locate or construct a railroad at that point. The statute of this State provides that articles of incorporation of railroad companies shall specify the termini of the proposed road [252] (Section 5055, sub. 6, B. & C. Comp.), but it does not require any designation of the particular route between such termini. It was therefore within the power of plaintiff and the discretion of its governing board to determine the course and direction of its road between the two given termini, and the exercise of this power will not ordinarily be controlled by the courts. Central R. R. Co. of N. J. v. Pennsylvania R. Co., 31 N. J. Eq. 475; State v. Martin, 51 Kan. 462 (33 Pac. 9); Bonaparte v. Camden & A. R. Co., 3 Fed. Cas. 821; Walker v. Mad River & Lake Erie R. Co., 8 Ohio, 38. 3. By its articles of incorporation plaintiff specified the two terminal points of what may be designated as its Tillamook division, as the City of Portland and the junction at Humbug Creek with the Nehalem River, and in our opinion it may lawfully locate its road over any available route which it might deem feasible or advantageous between the termini thus named. It is true that in its articles of incorporation it is stated that the proposed road is to pass through Tillamook to Nehalem Bay, and thence along the shores of Tillamook Bay by the valleys of the Miami and Foley Creek to and in the neighborhood of - Nehalem City. But this was evidently an error, because it is geographically impossible. Nehalem Bay is seven or eight miles north of Tillamook Bay, and it would be impossible to run from Nehalem Bay along the shores of Tillamook Bay or through the valleys of the Miami and Foley Creek, so this statement in the articles of incorporation may properly be treated as mere surplusage without affecting the right of plaintiff company to locate and establish its road from Tillamook to Nehalem Bay over the most practicable and feasible route, 4. It is also claimed that the route from the mouth of the Miami River to Nehalem Bay is a branch or spur line, and that plaintiff has no authority, under its articles of incorporation, to locate, establish, or operate such a [253] line; but this contention is not supported by the testimony. The line of road from Tillamook City north through Bay City and Hobsonville, and thence up the Miami to its headwaters, and down Foley Creek to Nehalem River, is a part of plaintiff’s route from Hillsboro to Tillamook, and, so far as this record discloses, is no part of its main line out of the Tillamook country northerly toward the junction of Humbug Creek and Nehalem River. Some of the maps of the survey from the mouth of the Miami to Nehalem Bay were designated by the surveyors as the Coast Line route, but this was for convenience and without authority of plaintiff, and there is no evidence that the company itself treated or intended the route around Garibaldi Point as a branch line. Indeed, its record and the testimony of its officers indicate that it considered that to be its main line northerly out of the Tillamook country. Again, it is contended that there are but two practicable routes for a railroad north from Tillamook, and that the plaintiff ought not to be permitted to occupy both, to the exclusion of a rival and competing road, and this was the view of the trial court. There is no evidence, so far as we can discover, indicating that plaintiff intends to reach Nehalem Bay by way of the Miami River and Foley Creek. As already said, that is a part of its line from Tillamook to Hillsboro, and therefore it cannot be said from the testimony that it intends to occupy both of these passes for the purpose of reaching the same terminal point. But there is another reason why this question ought not to be determined in this case. Such defense is not pleaded by the defendant, and no issue is tendered upon this question. There is some testimony in the record indicating that there are, in fact, two feasible routes north from Tillamook, but this was not an issue in the case, and clearly ought not to be the basis for a decree in this suit. [254] It is also claimed that the plaintiff was not acting in good faith in surveying and locating the line of its railway around Garibaldi Point; but this contention is not supported by the testimony. It is true the evidence indicates there was a race between plaintiff and defendant for the occupation of this point, and that plaintiff’s location was first in time, but there is nothing in the record to indicate that it was not acting in perfectly good faith and with an honest intent to build its road on the line so located. Upon the whole record, therefore, we are of the opinion that plaintiff’s location over the disputed territory was prior in time to that of defendant, and that it is entitled to be protected in the route thus acquired for a reasonable time, to be fixed in the decree, subject to the crossing right of defendant company. Reversed.