Johnston v. C., M. & St. P. R.

Dat, J. 1. RAILROADS: operations of: injunction. I. It is claimed the injunction should have been dissolved, because it was issued without notice to the defend-an^ company. Section 3391 of the Code provides: “An injunction to stop the general and ordinary business of a corporation, or the operations of a railway, or of a municipal corporation ******* can only he granted upon reasonable notice of the time and place of the application, to the party to be enjoined.” It is claimed that the injunction in question stops the operations of a railway. Ve think the operations of a railway, refer to the operations of a constructed railway, and not to the operations of a railway company in constructing a railroad. It is said that this construction renders the phrase operations of a railwa/y unmeaning, because it would all be embraced in the'words general and ordinary business of a corporation, which precede. It is a fact well known, however, that railways are sometimes operated by individuals. 2. INJUNCTION: dissolution of: fraud. II. It is claimed that the injunction should have been dissolved, because the answer denies all the material allegations of the petition. The petition alleges that the der jt o fen^ailf' fraudulently, pretends that it desires said l0t for a wood an¿ water station, only for the purpose of giving the semblance and color of legality to the attempt to obtain said lot under proceedings of appraisement. The plaintiff, therefore, seeks relief on account of the alleged fraud'of defendant. -.“"When relief is sought by an injunction against fraud, which is the gra/oamen of the bill, the court will continue the injunction though the defendant has fully answered the equity set up.” Dent v. Summerlin, 12 Geo., 5; Sinnett v. Moles, 38 Iowa, 25; Stewart v. Johnston & Co., 44 Id., 435; Brigham & Ward v. White, 44 Id., 677. [542] 3. RAILROADS: power to demn property for use. III. The appellants in their argument say: “ The central question involved in this litigation is this: Can railway com - Panies condemn such additional real estate outside of their right of way of one hundred feet, as may necessary to supply them with grounds for passenger stations, freight, and engine-house, warehouses, elevators, stock-yards, and such other appliances as may be necessary for the convenient use of- their railways? The power of condemnation for these purposes at a wood or water station, is affirmed and asserted on the part of appellant. It is denied on the part of the appellee.” In another part of their argument appellants go even further and insist that at any railway station the company may condemn lands, outside of the right of way of one hundred feet, for depots, warehouses, elevators, stock-yards, and the like. The question presented involves a construction of section 1241 of the Code, which provides; “ Any railway corporation organized in this State * * * may take and hold, under the provisions of this chapter, so much real estate as may be necessary for the location, construction, and convenient use of its railway, * * * * ; the land so taken otherwise than by the consent of the owners, shall not exceed one hundred feet in width, except for wood and water stations, unless where greater width is necessary for excavation, embankment, or depositing waste earth? The construction contended for by appellants is, in our opinion, wholly inadmissible. It ignores entirely the limitation in the statute that the land taken otherwise than by consent of the owner, shall not exceed one hundred feet in width. To render possible the construction insisted upon by appellants, the statute should have stopped where the portion indicated above in italics begins. The statute seems to us so plain as scarcely to be susceptible of construction. If it had stopped just preceding the word except, it is very clear that the company would have been limited for purposes of condemnation, to a strip of land one hundred feet in width. It [543] is equally clear that the company is now so limited for all purposes but those embraced in the exception. '"What, then, does the exception embrace? It includes wood and water stations, and places where greater width is necessary for excavation, embankment, or depositing waste earth. Appellants substitute the word at instead of the word for, and insist that at a wood and water station the company may condemn, outside of the one hundred feet, all the lands necessary for passenger stations, freight and engine-house, warehouses, elevators, stock-yards, and other ajjpliances. In another portion of their argument they insist that a Avood and water station is ex vi termmi, a railway station, and that the statute means precisely what it would if the words wood and water were eliminated from it. "We do not feel ourselves at liberty to use such freedom with the statute. The statute furnishes no justification for such* construction. The statute evidently limits the amount of land Avliich may be taken under condemnation proceedings to one hundred feet in width, except, First. Eor, that is, in advantage of, for the sake of, on account of, Avood and water stations. ¡¡Second. "Where a greater width is necessary for excavation, embankment, or depositing waste earth. It is claimed, however, that this construction, renders useless the provision of section 1242, authorizing a railway corporation to take and hold additional real estate at its water stations, for the purpose of constructing dams and forming reservoirs of water to supply its engines. Section 1241 of the Code was enacted in 1853. It was found that frequently a sufiicient supply of water could be obtained only by constructing dams across small streams and forming reservoirs. This would, of necessity, to some extent, flood adjoining property. It was considered doubtful whether this could be done under section 1241. To remove this doubt and clearly confer the power to construct such reservoirs, section 1242 was enacted in 1868. - It is not inconsistent Avitli the construction which we have placed on section 1241. The appellants, in support of their position, have cited and relied upon a number of [544] cases from other States, all of which arose under'statutes essentially different from the one under consideration. In our opinion, the court did not err in refusing to dissolve the injunction. Affirmed.