Chicago & Kalamazoo Terminal Railroad v. Grand Rapids & Indiana Railway Co.

Ostrander, J. (after stating the facts). The right to review, by certiorari, the determination of the court upon the issue which may be raised in conformity with the provisions of 2 Comp. Laws, § 6245, is settled by prior decisions of this court. U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668. But it is not contemplated by the statute that cause shall be shown by a series of special pleadings, the decision upon each of which may be „ separately reviewed. As has been repeatedly indicated by this court, the proceeding is not strictly judicial in character — is summary — and dilatory proceedings are not favored. The form in which cause is shown of record is not very material, so long as objections, however predicated, supposed to relate to the preliminary issue, are presented. Counsel for plaintiff in certiorari says that a question is presented which involves “consideration and determination of the extent to which the property of one railroad company may be taken by another by condemnation, under Michigan statutes, what land may be so taken, and for what purposes, the rights which may be acquired, as title or easement, and the construction of ” 2 Comp. Laws, § 6242, as amended by Act No. 266,- Pub. Acts 1899. It is only in the most limited sense that any of these matters are involved. General, applicable, principles are not in doubt. This court said, in Battle Creek, etc., R. Co. v. Tiffany, 99 Mich. 471, 474: “It is elementary that the power to condemn land is in the State, and can be exercised only in such cases and by such methods as the legislature may authorizé; also, that land once taken for and applied to a public use is not usually subject to condemnation under general laws, but only where the power is granted by express language or necessary implication. Again, railroads are permitted to condemn lands for their use because the use is considered a public one, and land procured for railroad purposes by purchase is as much for a public use as when it is condemned ; all being upon a common footing, and not subject to a subsequent exercise of the right of eminent do [690] main, unless authorized by an enactment of the legislature.” In Cincinnati, etc., R. Co. v. Bay City, etc., R. Co., 106 Mich. 473, one of the objections made was: “ It appears that this is an attempt to condemn the property of another railway, under circumstances unauthorized by statute.” It was argued, upon an appeal from the award, that the petition and this objection raised a jurisdictional question, to be settled before proceeding to an award. It was said that section 3331, 3 How. Stat., which is 2 Comp. Laws, § 6242, above referred to, “ Subjects railroad property to condemnation, excepting (under some circumstances) the track and right of way. The argument is made that this is an attempt to condemn the track and right of way; and, if this appeared from the petition and answer, it might be necessary to try the question. But it does not, and we think the circuit judge was right in declining to allow the question to be raised.” Undoubtedly, the petition must affirmatively state facts necessary to give the court jurisdiction. In view of these decisions we are not prepared to say that a railroad company may not own land, other than that excepted in section 6242, which is subject to be condemned by another railroad company for use as a way for its tracks. The petition, apparently, avers such facts as are required by the provisions of this section. We think it better practice, in such cases, to require the owner of the land to bring before the court the facts relied upon to defeat the proceeding, rather than to require the petition to negative, or to state by way of exclusion and inclusion, every fact and theory which the owner might rely upon to show the property to be exempt. The order of the court below is affirmed. Grant, C. J., and Blair, Montgomery, and Hooker, JJ., concurred.