Milwaukee Light, Heat & Traction Co. v. Milwaukee-Northern Railway Co.

Winslow, J. As appears by the statement of facts, this, is a contest between two corporations each seeking to acquire the same strip of land for railway purposes, the petitioner by condemnation and the respondent by purchase. Both corporations were in form organized under the provisions of ch. 86, Stats. (1898), the purposes of the petitioner, as stated — 325 — in its articles of incorporation, being to construct and operate street railways for tlie carriage of passengers and property in the city of Milwaukee and elsewhere in Wisconsin, and extending its railways into and through villages and towns of the state, and the purposes of respondent being to construct and operate an electric railway for the carriage of passengers and property in and between the cities of She-boygan, Milwaukee, and Eond du Lac, and neighboring towns, villages, or cities. The petitioner claimed in the trial court and claims in this court that the respondent has no power to build or operate a railway or to condemn land therefor, and that hence it cannot resist the petitioner’s application for condemnation. The contention, in brief, is that our statutes recognize but two kinds of public railroad corporations, viz., a street railway corporation organized under ch. 86, Stats. (1898), and a general commercial railroad corporation under the provisions of eh. 87 of the same statutes; that the respondent corporation is not a corporation of either kind, and, if it be a corporation at all, it has acquired no power to construct or operate a railroad for the carriage of passengers or freight, nor to acquire lands either by purchase or condemnation for such purpose. On the other hand it is claimed by counsel for respondent that our statutes authorize the formation under ch. 86 of what have been called electric railway corporations, which are neither municipal street railway companies nor general commercial railway companies, and that the re-' spondent is a company of this third class of railway corporations. The question is an important and interesting one and is now raised for the first time. Its correct solution requires a careful examination of the past and present statutes of the state concerning the formation of railroad corporations. Prior to the year 1872 there was no general law in existence specially designed to provide for the organization of railroad corporations. Oh. 73 of the Revised Statutes of — 326 — 1858 provided generally for tlie formation of “joint-stock companies,” with the powers of corporations, for the purpose of carrying on any kind of manufacturing, mechanical, mining, or quarrying business, or any other lawful business, by the adoption of articles of agreement in writing. It is perhaps possible that some transportation companies may have been organized under this law, but the general, if not the universal, custom was to procure a special charter from the legislature for the incorporation of either a general commercial railroad or a street railroad. Companies so formed were controlled by general regulations contained in ch. 76, Tay. Stats. (1871), and street railroads were authorized to accept municipal franchises and extend their lines into adjoining towns. Secs. 93, 94, ch. 76, supra> being ch. 313, Laws of 1860. By an amendment to the constitution finally adopted in 1871 the legislature was prohibited from passing special laws granting corporate powers and privileges except to cities, and in 1872 general laws providing for the organization of corporations by the making and filing of articles of association were passed. Of these general laws ch. 119 provided for the formation of general commercial railroad corporations, with rights of eminent domain, and regulated their operations, but the formation of street railroad corporations was not authorized thereunder. Ch. 144 provided for the formation of corporations for business and manufacturing purposes of various kinds, excluding, however, “banking, insurance, and operating railroads,” and repealed ch. 73 of the Revised Statutes of 1858, relating to joint-stock companies. Ch. 146 provided for the formation of corporations for “other than manufacturing, mercantile, insurance, banking, transportation, and trading purposes.” None of these laws contained any provisions for the organization of street railroad corporations, but the provisions of eh. 313, Laws-of' 1860, remained in force. Thus the law stood until the passage of the Revised Statutes of 1878, with apparently no. — 327 — means provided for the organization of street railroad corporations. By the last-named revision eh. 144 and ch. 146, Laws of 1872, were condensed and united, forming ch. 86, it being provided, however, that corporations for the purpose of engaging in hanking, insurance, building, or operating railroads or plank or turnpike roads could not he formed thereunder. Oh. 119 of the Laws of 1872 became with some changes ch. 87 of the revision, and still remained a chapter authorizing the formation of general commercial railroads only, the provisions of ch. 313, Laws of 1860, being added at the close of the chapter as secs. 1862 and 1863. It was evidently observed, however, that the existing statutes were barren of any provision for the organization of street railroad corporations, and the following new sentence was inserted at the beginning of sec. 1862: “Corporations for constructing, maintaining and operating street railways may be formed under ch. 86 and shall have powers and be governed accordingly.” At this time, then, the law stood thus: General commercial railroads with the power of eminent domain could be formed trader ch. 87, while street railroad companies without the power of eminent domain, but with the power to accept franchises from a municipal corporation to operate the cars upon the streets, and with the consent of the supervisors to operate them upon the highways of adjoining towns, might be formed under the provisions of ch. 86 as modified by sec. 1862. At this time there was little, if any, thought of the possibilities of the modern interurban railroad, and the street railroad itself was a modest affair, depending for its motive power on animals exclusively, and content to perform the functions of a carrier of passengers upon the streets of a city and its immediate suburbs. For the creation and government of such a railroad the legislation at this time was apparently ample, but it contained no provisions under which an interurban railroad corporation carrying passengers and — 328 — freight through the country from city to city could he formed; nor did it contain any provisions by which a street railroad company could enlarge the scope of its business so as to perform these functions. By ch. 221, Laws of 1880, however, sec. 1868, R. S. 1818, was amended in a most important respect. This section as it stood before the amendment was but a condensation of sec. 2, ch. 313, Laws of 1860, and provided in substance that a street railroad company operating within any municipal corporation might, with the consent of the supervisors of any adjoining town, extend its lines into such town and use the highways thereof, provided it should not obstruct common travel of the public thereon. The amendment of 1880 made no change in these provisions, but added new provisions, upon the true import of which must depend very largely the answer to the question now before us. These new provisions are as follows: “Corporations may be formed and governed in like manner for the purpose of building, maintaining, and using street railways with rails of wood or iron, in any village or town, or . to extend from any point in one village or town to, into, or through any other village or town; and for running of cars propelled by animals, for the carriage of either passengers or freight; and for that purpose, with the consent of the board ‘ of trustees of any village, and with the written consent of a majority of the supervisors of any town, in, into, or through which such railway or tramway may extend, may lay or operate their railways or tramways upon, across, or along any highway, but not so as to obstruct the common public travel thereon.” A further clause regulated the manner in which the consent of village trustees would be given and authorized the imposition of a license fee. It is said that these new provisions were intended merely to give additional powers to street railway corporations, but a careful examination of them precludes this idea. Had — 329 — such been the intention it would have been very easy, by the insertion of a few words in the existing section, to make the change, and make it in such a way as to make it dear that street railway companies were granted greater powers; but this was not done. Instead thereof the legislature left the provisions of secs. 1862 and 1863, authorizing the formation of street railway companies and the operation of their lines upon the streets of a city and its immediately adjoining towns,, absolutely intact as before, and proceeded to enact an independent provision complete in itself, authorizing the organization and operation of an entirely different thing, namely, a rural street railway or tramway operating only in or through villages or country towns, or both, and authorized to carry passengers and freight. Eor these purposes the said “corporations may be formed and governed in like manner,” i. e. in like manner to street railway corporations in a city, or, in other words, under the provisions of eh. 86. This provision is useless, and even nonsensical, if the intention was simply to endow street railway companies with the additional power to build and operate lines through towns and villages not adjoining their home cities. Again, the corporations contemplated by this new section were authorized to build only in or through villages and country towns and not in cities at all, whereas the true street railroad corporation was by sec. 1862 expected to operate its lines in a municipal corporation and its immediately adjoining towns. If the legislature did not here intend to provide for the creation of a new sort of a railway, namely, a rural street railway or tramway to traverse only the highways of villages and country towns and carry passengers and freight, then they expressed their intentions most unfortunately and blindly. To our minds this intention seems very plain. True, this rural railway or tramway was not the electric interurban railroad as since developed and as we know it, but it was to all intents and purposes the germ of — 330 — the modern interurban railroad, and was clearly differentiated from the municipal street railroad on the one hand, and the general commercial railroad on the other. Subsequent legislation seems to make the intent still clearer. By ch. 387, Laws of 1891, two significant changes were made in the provision under consideration. The word “street” was stricken out before “railways,”- and the words “or other power” inserted after the word “animals,” so that it now authorized the building of railways in and through towns and villages for carrying passengers and freight, the cars of which were to be propelled by animals or other power. This industrious elimination of the word “street” from the section seems an unmistakable indication of the legislative intent to remove all cause for confounding the new railroad or tramroad with the municipal street railroad, and the addition of the words “or other power” seems an equally clear indication that the legislature realized that the electric interurban road was in sight and must be provided for. The section as thus amended was inserted without change in the Statutes of 1898, where it appeared as sec. 1863, and so remained until the year 1901, when it was evidently recognized that interurban railways must be authorized to enter and run through cities as well as villages and country towns, and by ch. 425 of the laws of that year the section was again amended so as to accomplish this purpose. This act is very significantly entitled “An act to amend sec. 1863 of the Statutes of 1898 relating to extension of street and electric railways into towns and villages.” It was evidently under the law of 1891 that the defendant in the case of Chicago & N. W. R. Co. v. Milwaukee, R. & K. E. R. Co. 95 Wis. 561, 70 N. W. 678, was organized. In this case the defendant, having obtained street franchises from the village of South Milwaukee, attempted to lay its tracks on one of the streets across the tracks and right of way of the plaintiff, a commercial railroad, and it was held — 331 — that it could not do so because it was organized to operate, not. a mere street railway, but in substance a commercial railway for the carriage of passengers and freight from city to city,, and hence its tracks constituted an additional burden on the-streets for which abutting owners were entitled to compensation. This case was argued Eebruary 27, 1897, but not decided until April 7, 1897. Its pendency had, however,, called sharp attention to the fact that no railroad corporations, except those organized for general commercial purposes under ch. 87, possessed the power to condemn lands,, and that without such power both street railways and interurban railways might be seriously handicapped, if not crippled, in their operations. To meet this difficulty it was concluded that limited powers of condemnation should be given, them, and to that end ch. 175, Laws of 1897, was passed. This act provided that “any street railroad corporation or any electric railroad' corporation” may by purchase, grant, or condemnation acquire lands and other property necessary for the construction and operation of its railroad within certain-limitations, and applied the railroad condemnation statutes-to such corporations. The wording of this act, both in its-title and in its body, so clearly recognizes the existence of two kinds of corporations, the “street railroad corporation”' and the “electric railroad corporation,” that any serious-doubt as to the legislative understanding of the subject seems-to be removed. This statute was soon thereafter embodied in the Statutes of 1898 as sec. 1863o-, and was abbreviated in its-wording so as to confer the power of condemnation on “any street or electric railroad corporation,” but there is no indication of any intention to make any change in the meaning by this striking out of words. It was evidently thought that the-same méaning was expressed in fewer words. This section was subsequently amended so as to grant more complete-powers of condemnation by ch. 306, Laws of 1899, ch. 465,. Laws of 1901, and ch. 266 and ch. 497, Laws of 1905; but. — 332 — none of these changes affects the present question. It is common knowledge that the interurban railways which have been built in this state are all operated by electricity, and that they are popularly called “electric railroads.” The legislature has evidently adopted this popular name, and has used it since 1897 to designate the rural or interurban railroad. One exception to this use may be noted, and that is in ch. 347, Laws of 1903 (secs. 18635-f, Stats.: Supp. 1906), which authorizes “any street or interurban railway company” located in one of the border counties to consolidate with a like corporation in an adjoining county of the adjoining state. Here the recognition of an interurban railway company,' as distinct and separate from a street tailway company, is so manifest as to require no discussion of the subject. It is true that some recent statutes have not accurately preserved the distinction. In one of the clauses of ch. 497, Laws of 1905,' the words “electric railway” are used alone, evidently intending to cover both street and interurban roads, and in ch. 447, Laws of 1905 (secs. 4078a, 40785, 4078c, Stats.: Supp. 1906), requiring the production of books and papers by the officers of railroad corporations, only railroad and street railroad corporations are named, though it is manifest that all railway corporations were intended to be included. So, also, in some of the decisions of this court, notably Chicago & N. W. R. Co. v. Oshkosh, A. & B. W. R. Co. 107 Wis. 192, 83 N. W. 294; Younkin v. Milwaukee L., H. & T. Co. 112 Wis. 15, 87 N. W. 861, and State ex rel. Vilter Mfg. Co. v. Milwaukee, B. & L. G. R. Co. 116 Wis. 142, 92 N. W. 546, the term “street railway” is inaccurately used as if it covered the interurban railroad. Such inaccuracies, however, can have little weight in the face of the definite statutory provisions already referred to creating and recognizing the interurban or electric railroad. The respondent corporation was organized, under the provisions of ch. 86, as an electric railroad running from city — 333 — to city, and we hold that such organization was authorized under sec. 1863, supra,, and the amendments thereto, and that it has the power to acquire lands for its legitimate purposes hy purchase or hy the exercise of the power of eminent domain. Here we are met with a counter contention on the part of the respondent to the effect that the petitioner has no power to condemn the lands in question. The argument is that the petitioner is a street railroad corporation only, and that such a corporation has only the power to extend its lines into the towns immediately adjoining the municipality from which it has received street railway franchises under the first paragraph of sec. 1863, supra,; that if it desired to incorporate as an interurban railway corporation it must designate in its articles of incorporation the points between which it proposes to construct its line, as general commercial railroads are required to do by sec. 1820, Stats. (1898). It is argued that in no other way can the purposes of the company be satisfactorily stated, and that as sec. 1772, ch. 86, Stats. (1898), requires the articles to state the “business or purposes” of the corporation, the articles must state the termini of its proposed road. It is further argued that as sec. 1863 authorizes the formation of such corporations to build a road extending from a point in one city, village, or town into or through any other city, village, or town, it is plainly implied that the cities, villages, or towns into or through which the proposed railroad is to run must he named, and that the legislature could not have intended to grant a roving commission to such a corporation to build a railroad in the state wherever its officers might at any time choose. The argument is not without considerable weight. We do not think, however, that the law has been so construed, and we should hesitate to give a narrow construction to a statute which is not absolutely clear in its terms at the risk of imperiling extensive interests which have grown up under a liberal or broad construction — 334 — unchallenged for years and honestly entertained. Nor do we see any necessary evils or dangers resulting from the broader construction. Were it to be held that the articles must state the termini of the proposed road, the only result would, be that the corporation would be obliged to amend its articles at any time when it desired to change its route or build another line. Again, sec. 1772, supra, only requires the statement of the “business or purposes" of the corporation. The petitioner’s articles state that its business, among other things, is to construct and operate street railways in the city of Milwaukee and elsewhere in the state, and to extend its lines into or through any village or town of the state. This seems to constitute a sufficient compliance with the requirement that the articles state the business of the corporation, and we therefore hold that the petitioner has power to extend its lines and for that purpose to condemn the property in question. These conclusions necessitate consideration of the question of the relative rights of the parties in the disputed strip.’ When rival companies are seeking to acquire the same lands for railway purposes at the same time, the question which is entitled to precedence is frequently delicate and doubtful, and this is especially true when one company is seeking to condemn and the other is seeking to purchase. The general principle, doubtless, is that priority is acquired by that company which first makes a completed location over the property, and that the relative dates of the organizations or charters of the rival companies are immaterial. 2 Lewis, Em. Dom. (2d ed.) § 306. The difficulty, however, lies in determining what acts amount to a completed location, especially in view of the varying statutes upon the subject in the different states. It is frequently said that, as to third persons and rival corporations, a valid location is made by a survey and staking out of the line and the adoption of such line by the directors. Pittsburg, Va. & C. R. Co. v. P., C. & S. L. R. Co. 159 Pa. St. 331, 28 Atl. 155; Chesapeake & O. R. Co. — 335 — v. Deepwater R. Co. 57 W. Va. 641, 50 S. E. 890. Amere tentative survey, made to ascertain the feasibility of a route, cannot be considered a completed location, though every measurement be made and every stake driven with mathematical accuracy. There must necessarily be some decisive act on the part of the ultimate corporate authority which commits the corporation to the route surveyed before the location can be said to be completed; but, on the other hand, the corporate determination to build upon the route surveyed need not be an irrevocable determination, for the corporation may, at its election, discontinue condemnation proceedings prior to the appointment of commissioners, and with the consent of the court may do the same after commissioners are appointed and before the award is made. Manitowoc & L. W. R. Co. v. Stolze, 101 Wis. 91, 76 N. W. 1113. It is plain, however, that it must be a determination made' with the present intention in good faith to locate the line upon that route and construct the same with reasonable diligence. It cannot file a mere caveat upon the route and await future developments. Our statute, sec. 1846, Stats. (1898), requires the petition for railroad condemnation to state, among other things, that the corporation has surveyed its route over the lands sought to be condemned, has actually staked out its center line, and that the route has been located by the board of directors upon the line so staked out. There can be no doubt that in this .state these acts, taken together, constitute a complete location in the sense now under consideration, and that in case of a contest between two companies for the same location that company which has in good faith first taken all of these steps must be considered as having made the prior location. In the present case the petitioner commenced making the survey of a line from Milwaukee northerly through Cedar-burg and running over the disputed strip in September, 1903, and completed the field work in May, 1905, but did not complete the maps necessary for condemnation proceedings till — 336 — J anuary 6j 1906. The trial court found that this survey was tentative only, and was not made with the fixed intention of establishing a railway on the land in controversy. There is certainly evidence in the ease which justifies this finding. The whole line probably did not exceed thirty miles in length and presented no serious engineering difficulties. No local franchises were sought or obtained. To say that the survey proceeded with deliberation would be to pay an undeserved compliment to the activity of the engineers. Active proceedings did, however, commence in the latter part of December, 1905, apparently coincident with the discovery of active operations on the part of the respondent, and on the 16th day of January, 1906, the petitioner’s board of directors formally adopted the line of the survey as the line of the road, and on February loth this petition was filed. The decisive corporate act by which the previous experimental or tentative steps were adopted and the location in fact made by the petitioner was undoubtedly the resolution of January 16, 1906, and the question arises whether previous to this time the respondent had made a completed location over'the disputed strip. The steps taken by the construction company and the respondent’s officers in the fall and early winter of 1905 and 1906 are fully stated in the statement of facts and need not be repeated here. Surveys were actively begun in October, 1905, by the construction company, and prosecuted to completion in November, and the line staked out over the disputed strip. At the saíne time option contracts were rapidly obtained running to one of the promoters of the new company. The company itself became fully organized and incorporated October 25, 1905, with practically the same executive officers as the construction company, and the work already begun proceeded without interruption. Twenty thousand dollars was paid in by stockholders, and resolutions were adopted by the board of - directors which are set forth in full in the statement, and upon the proper construction of these resolutions depends the — 337 — question whether the respondent by decisive corporate act completed the location of its proposed railroad over the strip in question prior to January 16, 1906. A railroad corporation may acquire its necessary real es-' tate or right of way by purchase as well as by condemnation. Eew would doubt that if the board of directors of such a corporation by resolution authorized its executive officers to survey and locate a right of way between given points and purchase the same, and appropriated corporate money to be used for such purpose, and the officers under this authority in good faith selected a route, caused it to be surveyed and staked out, determined that the load should be built upon it, and purchased, or contracted to purchase, the necessary land, this would constitute a completed location of the right of way, conferring priority of right. The statute requires location of the route by the board of directors as a preliminary to condemnation proceedings, but we find no such requirement as a preliminary to purchase. The idea that a rival company could step in and make a survey and condemn the land so purchased, simply because its directors' had afterwards adopted a formal resolution locating its route over them, would be at once rejected. The appropriation for railroad purposes was already complete. Atlanta, K. & N. R. Co. v. Southern R. Co. 131 Fed. 657, 66 C. C. A. 601. The fact that a railway company, proceeding to acquire a right of way by purchase, adopts a survey already made or partially made by another company or by promoters, cannot in reason be held to affect its rights. The essential thing is that an accurate survey and location upon the ground has been made,' whether made by the company itself, or by another and then adopted by the company. Lower v. C., B. & Q. R. Co. 59 Iowa, 563, 13 N. W. 718; Morris & E. R. Co. v. Blair, 9 N. J. Eq. 635. In the present case the route was partially surveyed and some options obtained from property holders before the for — 338 — mation of the respondent corporation and in contemplation that snch corporation would he formed and carry on the .work. Did the' resolntions adopted by the directors of the new corporation in effect adopt these acts and locate the route and authorize the executive officers of the company to proceed and carry out the plans already under way and purchase the route on behalf of the corporation ? Eairly construed in the light of the situation, we think they did. In substance these resolutions conferred power on the president, secretary, and treasurer:. (1) To make a contract with the construction company, subject to the approval of the board, for the acquirement of all necessary additional rights of way, privileges, franchises, and other rights for the proposed line; (2) in the meantime to arrange with the construction company to continue securing necessary franchises and rights of way for the line; and (3) to pay to the construction company out of the corporate funds not exceeding $20,000 for rights of way already secured and on account of disbursements and services in procuring additional rights of way and franchises, etc. The wording is not as clear as could be wished, but it seems to us unmistakable that these resolutions in effect locate the proposed line on the route tentatively adopted by the construction company, and ratify the previous acts of the construction company in securing franchises and rights of way, and authorize the officers to arrange for the continuance and completion of the work so begun and to purchase the rights of way and franchises already secured by the construction company. Certainly this was the understanding of every person concerned.^. The officers proceeded on this basis. The surrey was pushed to completion in November. The option contracts already secured were" assigned to the new company early in November. Eurther option contracts were obtained, and before January 16,1906, the respondent company owned option contracts covering nearly eight out of the nine miles of disputed right of way in the two comities of Milwaukee and — 339 — Ozaukee. ErancMses and highway-crossing permits were obtained from the various town and village authorities on the line. The $20,000 appropriated for the purpose was used as required.. Early in February deeds were obtained from practically all who had given options. All this was done with the knowledge and approval of the directors of the respondent company, although without further corporate action. The industry and activity with which the enterprise was pushed was in marked contrast with.the leisurely procedure of the petitioner, which had spent more than two years in making its tentative survey and maps. It seems probable that a race of diligence had begun. Mr. Walker had in fact seen some of the petitioner’s stakes near Oedarburg on his preliminary trip over the route; but if, as the court found, these were mere experimental stakes, set without intention to build, their presence could not prevent another company from taking the necessary steps to acquire the land, provided it intended in good faith to build a railroad thereon. In such case the prize would go to the company which first secured a completed location. So it appears that prior to January 16, 1906, the respondent company had made or adopted a fully completed survey over the disputed lands, and determined in good faith to build its railroad thereon, had secured all the necessary franchises and crossing privileges from towns and villages, and had obtained option contracts on all but a very small fraction of said lands, and intended in good faith to utilize such options, and take deeds of the lands at an early date. These are very decisive acts, and, unless it be necessary that it should have actually secured deeds or binding contracts to purchase the lands, these acts must be held to constitute a completed location, so fax at least as to. give precedence in a contest with a rival company seeking to obtain the same lands. Certainly it was not necessary that it should have paid for the lands or secured deeds. As to all the world except the owner, the appropriation of land for railroad pur — 340 — poses may be complete ■without either of these steps, and the only question, then, is whether it was necessary that it should have hound itself hy contract to purchase the lands. We think not. The essential requirement is, not that there should be a' completed purchase, hut that there should he decisive corporate action taken in good faith locating the route and committing the corporation to that route, though not necessarily irrevocably. The securing of option contracts over practically the whole line surveyed, with the bona fide intention of utilizing them and completing the purchases and building the line, must he held to he such a decisive act, and we therefore hold that the petition for condemnation was properly denied. Numerous authorities were cited to our attention, most of which, however, throw little light on the determination of the question here presented on account of differences in the statutory provisions of the different states. In those states which require recording or filing of the survey in some public office preliminary to an application to have damages assessed, such recording is held to give a prior right, or impress a lien on the lands for á reasonable time superior to any right thereafter obtained by purchase by others, even though such purchase be made before the proceedings for assessment of damages are commenced. Barre R. Co. v. M. & W. R. R. Co. 61 Vt. 1, 17 Atl. 923; Morris & E. R. Co. v. Blair, 9 N. J. Eq. 635; Rochester, H. & L. R. Co. v. N. Y., L. E. & W. R. Co. 110 N. Y. 128, 17 N. E. 680. We have no such provision in our statutes. The only provision resembling it in our statutes is that-clause of see. 1846, supra, which requires that a map of the proposed route and the land sought to be taken be attached to the petition for condemnation. If it were to be held that the filing of this map is the pivotal act on which the petitioner must depend for priority of right, then the logic of the decisions named would defeat the petitioner, because prior to that time the respondent had in good faith — 341 — secured deeds to all but a small fraction of the lands 'in dispute, and thus, beyond all controversy, had performed every act necessary to constitute a completed location by purchase. Again, decisions are cited to the effect that a railroad company cannot adopt an unauthorized survey made by promoters or by another company, and thus obtain i location as against another company seeking to condemn. New Brighton & N. C. R. Co. v. P., Y. & C. R. Co. 105 Pa. St. 13; Washington & I. R. Co. v. C. D. R. Co. 160 U. S. 77, 16 Sup. Ct. 231. This is not universally held, as we have previously seen in this opinion; but, conceding it to be correct in cases where the rival companies are both seeking to acquire title by condemnation or legislative grant, as in the cases cited, still it would not necessarily control in the present case. Here the respondent was not seeking to condemn, but was proceeding to acquire title by purchase. There is no statutory provision which expressly or by implication requires the survey and staking to be done by the company itself when it is seeking to purchase, as sec. 1846, supra, seems to require in case of condemnation. Furthermore, in the present case the survey was only partially made by the promoters; the greater part was made by authority of the respondent itself after its or-' ganization. Authorities holding that the location of the route cannot be delegated to a committee (Weidenfeld v. S. R. R. Co. 48 Fed. 615), or that location of the route cannot be made by the act of the surveyor in surveying and marking a line without action by the directors (Williamsport & N. B. R. Co. v. P. R. Co. 141 Pa. St. 407, 21 Atl. 645), plainly can have no bearing, for the reason that in the present case, as we construe the resolutions of the directors, they themselves fixed the route and located the line. Our attention is called to sec. 1854, Stats. (1898), which provides that, when one railroád company shall require any lands “previously acquired” by another railroad company, the same may be condemned, providing that no land shall be — 342 — taken in suck manner as to interfere with the main track of the first established, railroad, except for crossings. As this statute refers to land “previously acquired,” and as in the present cáse the respondent had not in fact acquired the land in dispute when the petitioner’s resolution locating its route was adopted, there seems to he much doubt whether the section can be held to apply to the present case, and hence we have preferred to rest our decision on general principles of law. By the Court.- — Order affirmed. Timlin, J., took no part.