Utah, N. & C. R. v. Utah & C. Ry. Co.

HAWLEY, District Judge (after stating the facts), i. The complainant on April 27, 1901, filed its bill of complaint and obtained an order requiring the defendants to appear and show cause why a preliminary injunction should not issue; and it appearing to the satisfaction of the court, from the averments of the bill, that there was danger of irreparable injury to complainanEbefore such hearing could be had, the court ordered that the defendants be— “Restrained and enjoined from entering upon the right of way and railroad grade, cuts, embankment, tunnels, or any other portions thereof, of that certain line of railroad right of way and railroad grade described in tlic bill of complaint herein,' and being in Lincoln county, in said state and district •of Nevada, beginning at a point on the eastern boundary line of said state, at or near a point now known as ‘Uvada,’ and extending tlienee southwesterly along tlie said grade and right of way indicated by said railroad bed, cuts, embankment, tunnels, etc., to a point called ‘Clover Valley Junction,’ a distance of about forty miles, and from said Glover Valley Junction, extending along such right of way, grade, embankment, cuts and fills, northerly or northwesterly, a distance of thirty miles, more or less, to a point at or near the town of Pioehe, in said Lincoln county, and from in any manner obstructing, preventing, or interfering with the said complainant, its officers, agents, attorneys, servants, and employes, from proceeding peaceably and continuously with the work of construction of its railroad on and along — 888 — tlie said right of way, railroad grade, and embankment, until the further order of the court herein.” On June 3, 1901, complainant by leave of the court filed its amended and supplemental bill, praying for a restraining order enjoining the defendants from entering upon complainant’s right of -yvay from Clover Valley Junction, extending southwesterly, through Lincoln county and across the state of Nevada, to the western boundary of said state, upon the line of railroad right of way as indicated and shown upon certain maps of complainant, filed with and approved by the secretary of the interior. The court made an order requiring defendants to appear on the same day as they were required to appear or answer to the original bill to show cause why an injunction should not issue as prayed for in the supplemental bill. The rule to show cause was heard upon the averments of the original bill and answer of defendants filed thereto, the supplemental bill and demurrer thereto filed by defendants, divers maps of the respective parties, filed and approved, or held for information, by the secretary of the interior, various rulings of the general land office and decisions of the secretary of the interior, and numerous other documents, exhibits, and affidavits more or less relevant to the various questions involved herein, etc. The pleadings and proofs submitted on this hearing are so extremely lengthy as to render it difficult to make any brief statement, even in skeleton form, which will convey a true outline of the general facts presented by the respective parties. Certain matters, however, have been embodied in a statement of facts which will assist in the better understanding of some of the points discussed herein. There are many links in the chain of evidence offered by the complainant in order to establish its right to the roadbed and right of way from Uvada to Clover Valley Junction, and from thence to Pioche, which would be important and material to be considered upon a final hearing herein, but which, in the light of all the facts, need not now be stated or discussed, as the title to said roadbed and right of way is not properly before the court at this time for determination. In fact, there are many questions involved herein, elaborately argued by counsel, which might, perhaps, be decisive of the real issues between the parties as to the title to the property in controversy, that are not, in my opinion, in a condition to be decided at the present time, which will be readily observed from a reading of the statement of facts, namely, the validity of the tax title acquired by the defendants to the roadbed situate in Lincoln county, and the validity of the surveyed right of way adopted by the complainant through the state of Nevada, and the character and effect of certain work done by the defendants, with reference to which the commissioner of the general land office has ordered a new hearing. Independent of the question as to whether or not this court has any jurisdiction in the present suit to determine whether the judgment obtained by the state of Nevada against the Oregon Short Lind & Utah Northern Railway Company for taxes is valid or invalid, it seems to me perfectly clear that the mere fact that this complainant selected the state court as the proper forum to determine that question is, of itself, sufficient for this court to refuse to discuss the — 889 — question or decide it in a collateral proceeding. The condition of affairs and the acts of the respective parties at the time the original bill was filed and the temporary restraining order issued were such as demanded immediate action in advance of the settlement, through the regular channels of litigation, of the principal controlling questions as to the title and legal rights of the respective parties. The situation, is, therefore, somewhat embarrassing and difficult. It is admitted that under the averments of the original bill the court was fully justified in issuing the restraining order. The questions presented are whether or not, under the pleadings and proofs upon the rule to show cause, the restraining order under the original bill should be continued or discharged, and whether, under the supplemental bill and proofs with reference thereto, a temporary injunction should be issued as prayed for therein. The whole case has been argued with signal ability, and all the points have been presented with as much earnestness, care, attention, and force as if the entire matter of a final hearing on the merits was involved. 2. It is earnestly contended by defendants’ counsel that the Oregon Short Tine & Utah Northern Railway Company had no title to the disputed right of way which it could convey either to the Oregon Short Tine Railroad Company or the complainant, and that the purported deeds from the Oregon Short Tine & Utah Northern Railway Company and the Oregon Short Tine Railroad Company to the complainant, introduced in evidence in this case, conveyed nothing; that the Oregon Short Tine &. Utah Northern Railway Company forfeited whatever rights it ever had by surveys, location, and work done under the act of March 3, 1875, by failing to comply with the provisions of section 4 of said act and to complete any section of its road in five years; that the Oregon Short Tine & Utah Northern Railway Company, prior to the organization of the Oregon Short Tine Railroad Company and the complainant company, had forfeited any rights which its survey and location of its right of way may have .given it over private lands under the laws of the state of Nevada. The proviso in section 4 of the act of congress of March 3, 1875, reads as follows: ‘‘That if any section of said road shall not he completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.” In 1865 the legislature of the state of Nevada passed “All act to provide for the incorporation of railroad companies,,and the management of the affairs thereof, and other matters relating thereto,” approved March 22, 1865. Comp. Laws Nev. (Cutting) § 971 et seq. Section 1024 reads as follows: ‘•If such railroad company shall not, within four years after the filing of its original articles of association, begin the construction of its road and expend thereon at least 5 per cent, of the amount of its capital stock, and finish the road and put it in full operation within six years, its act of incorporation shall be void.” It is ■ argued by defendants that, because of the failure on behalf of this corporation to do the acts therein required within the time therein specified, its rights became ipso facto void; that by the terms — 890 — of the statute the forfeiture clause was self-operative, and became of full force by the lapse of the time mentioned; and that no steps or proceedings on the part of the sovereign power to make it complete or effective were at all essential. There are numerous cases where, upon the particular facts thereof, it has been held that, a statute creating a corporation which declares that unless the corporation performs certain acts within the prescribed time its corporate existence and powers shall cease, or its powers and franchises shall terminate, such statute executes itself. But the fact is that this question is always made dependent upon the special facts, the character of the corporation, and the legal construction to be given to the particular statute. The general rule is that the question whether a railroad corporation authorized by the state has forfeited its corporate rights and franchises cannot be raised in any collateral proceeding, and can only be taken advantage of by the sovereign power which created the corporation, because it is its privilege alone to question the right of the corporation to act under its franchise. The state may waive the conditions, or enforce them, if it sees fit to do so. When the continued life of the corporation is made by the charter or governing statute to depend upon the performance of a condition subsequent, the nonperformance of the condition is not an ipso facto forfeiture, but is a mere ground of forfeiture, of which the state can avail itself, or which it can waive at its pleasure. So that, unless the state takes advantage of the ground of forfeiture, in a proceeding by quo war-ranto, or otherwise, to oust the corporation of its franchise, the existence of the corporation cannot, upon such a ground, be collaterally called in question. The supreme court of the United States has uniformly held, in construing various acts of congress containing similar provisions to the act of 1875, that the failure to complete the road within the time limited is treated as a condition subsequent, not operating ipso facto as a revocation of the grant, but as authorizing the government itself to take advantage of it, and forfeit the grant by judicial proceeding, or by an act of congress resuming title to the lands. Schulenberg v. Harriman, 21 Wall. 44, 62, 22 L. Ed. 551; Van Wyck v. Knevals, 106 U. S. 360, 368, 1 Sup. Ct. 336, 27 L. Ed. 201; Railroad Co. v. McGee, 115 U. S. 469, 473, 6 Sup. Ct. 123, 29 L. Ed. 446, and authorities there cited; Bybee v. Railroad Co., 139 U. S. 663, 674, 11 Sup. Ct. 641, 35 L. Ed. 305, and authorities there cited; Railroad Co. v. Mingus, 165 U. S. 413, 431, 17 Sup. Ct. 348, 41 L. Ed. 770; U. S. v. Northern Pac. R. Co., 177 U. S. 435, 20 Sup. Ct. 706, 44 L. Ed. 836. The distinction between the cases of In re Brooklyn, W. & N. Ry. Co., 72 N. Y. 245, and Brooklyn Steam Transit Co. v. City of Brooklyn, 78 N. Y. 524, and other cases relied upon by defendants, from the present case, is clearly pointed out in Bybee v. Railroad Co., supra, where the court said: “Counsel for plaintiff has called our attention to several cases decided by the court of appeals of New York which doubtless have a bearing upon this quéstion, but,which, when carefully examined, are readily distinguishable. * * * In these cases the legislative act did not avoid the grant upon the nonperformance of: the condition subsequent, but declared that the corporate existence and powers of the company to act were at an end. In other words. — 891 — it fixed a time for the expiration of the charter, and, when that time arrived, the corporation lost its power to act, or to do any business beyond such as was necessary in the process of winding up. It was not so much a case of forfeiture as of loss of legal entity, or, as expressed in the language of the court of appeals in the case in 78 N. Y.: ‘In case of noncompliance, the act itself ceases to have any operation, and all the powers, rights, and franchises thereby granted were deemed forfeited and terminated. There was to be, not merely a case of forfeiture which could be enforced by an action instituted by the attorney general, but the powers, rights, and franchises were to be taken and treated as forfeited and terminated. At the end of the time limited the corporation was to como to- amend, as if that were the time limited in its charter for its corporate existence.’ More directly in point is the case of Oakland R. Co. v. Oakland, B. & F. V. R. Co., 45 Cab 365, 13 Am. Rep. 181. In this case an act of the legislature granting a corporation the right of way to lay a street-railroad track provided ‘that, if the provisions of this act are not complied with, then the franchise and privileges herein granted shall utterly cease and be forfeited.’ A breach of this condition was held ipso facto to forfeit the franchises of the corporation. A distinction was drawn in this case between forfeitures at common law, which did not operate to devest the title of the owner until, by proper judgment in a suit instituted for that purpose, the rights of tlio state lmd been established, and a forfeiture declared by statute, in which case the title to the thing forfeited vests immediately in the state, upon the happening of the event for which the forfeiture is declared.” The supreme court then referred to the fact that the doctrine of these cases had not been universally accepted, and that under the facts there stated the principles therein announced have been distinctly repudiated in several states of the Union, and concluded with the statement that: “It is not, indeed, always easy to determino whellior a condition he precedent or subsequent. It must depend wholly upon the intention of the parties as expressed in the instrument and the facts surrounding its execution. If the condition docs not necessarily precede the vesting of the estate, or if, from the nature of the act to be performed and the time required for its performance, it is evident that the intention of the parties is that the estate shall vest, and the grantee shall perform the act after taking possession, then tlie condition is treated as subsequent, and there is no forfeiture without a re-entry by the grantor, or, in the case of the state, without some action on its part manifesting an intention to resumo its title. In the case under consideration, the act, as already stated, takes effect as a present grant, and the provision for a forfeiture in case the company fails to com-pleto its road is clearly a condition subsequent.” 3. It is next claimed by the defendants that no rights have been acquired by the complainant by tirtue of any acts of its own, and in this connection it is argued that the evidence submitted on this hearing clearly shows that the defendant the San Pedro, Los Angeles & Salt Lake Railroad Company was the first to begin its surveys, and that it prosecuted the same diligently and properly to final completion by the filing of its maps and profiles thereof for approval by the secretary of the interior; that.it was also the first to begin the actual work of constructing its line of railroad thereon; that it has purchased several miles of the right of way where the same extends across the lands of private parties on the line between Clover Valley Junction and Pioche, and also on the line from Clover Valley Junction southwesterly to the state line. On the other hand, it is claimed by the complainant that, independently of the rights accruing to it under the act of congress of March 3, 1875, and obtained by it from — 892 — the various auxiliary railroad corporations, it is first in time and first in right under the laws of Nevada, because it first legally adopted its definité line of location. It must be borne in mind that, at the time the parties plaintiff and defendants entered upon the possession of the roadbed, neither corporation, plaintiff or defendant, had adopted any definite line or survey upon which its road was to be built. The facts are that complainant adopted its definite line of survey by a resolution duly passed by its board of directors on May 9, 1901, and the San Pedro, Los Angeles & Salt Lake Railroad Company adopted its definite line of route upon which it was to construct its railroad at a directors’ meeting held May 22, 1901. The rights of the respective parties, upon this branch of the case, do not depend upon the question of prior possession of either party upon any particular part of the roadbed or -right of way, either for the purpose of making a survey or doing work thereon. Neither party could gain any right by a possession obtained, or sought to be held, by force or violence. Whatever work was done was performed at their peril. In my opinion it is wholly immaterial which corporation, through it officers, servants,-or employés, first put foot upon the soil in dispute. The legal machinery controlling any right to the roadbed or right of way obtained by the surveys, or by possession, could not be set in motion until the corporation claiming the right of way had by corporate acts definitely adopted the line upon which its road was to be built. This is an essential act to be performed in order to enable the corporation to exercise the right, of eminent domain under the statute. Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 110 N. Y. 128, 17 N. E. 680; Southern Pac. R. Co. v. U. S., 109 Fed. 913; Railroad Co. v. Blair, 9 N. J. Eq. 635, 643, 645; Sioux City & D. M. R. Co. v. Chicago, M. & St. P. R. Co. (C. C.) 27 Fed. 770, 774; Johnston v. Gallery, 184 Pa. 146, 151, 39 Atl. 73. In Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co., 141 Pa. 407, 414, 21 Atl. 645, 646, the court, in discussing this question, said: “The successive steps contemplated by the act of 1849, and subsequent legislation, as necessary to vest a title to the roadway in the corporation, are these: (1) A preliminary entry on the lands of private owners for the purpose of exploration. This is made by engineers and surveyors, who run and mark one or more experimental lines, and who report their work, with such maps and profiles as may be necessary to present it properly to the company that employs them. (2) A selection and adoption of a line, or one of the lines, so run, as and for the location of the proposed railroad. This is done by the corporation, and it requires the action in some form of the board of directors. This makes what was before experimental and open, a fixed and definite location. It fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates to the use of the corporation. (3) Payment to the owner for what is taken and the consequences of the taking, or security that it shall be made when the amount due him. is legally ascertained. The title of the owner is not de-vested until the last of these steps has been taken. * * .* As to third persons and rival corporations, howc ver, the action of the company adapting a definite location is enough to give title. * * * In other words, this is the method by which the corporation exercises the power of eminent domain, with which the state invested it at its creation, and takes what before belonged to others for its corporate use. It may acquire land by purchase, if ,its charter authorizes it to do so, .before a location of its road; but, i£ — 893 — it docs so, it holds the land as any other purchaser would, subject to the right of any one haying the right to do so to enter and appropriate it by virtue of the right of eminent domain. That a corporation cannot exercise the power to appropriate land until it has located its line is well settled. Tims, if a company has an option between two or more lines or routes, it must make its election by an actual adoption of one of them before it can acquire title by appropriation upon either. 1 Redf. R. R. 240. The reason for this is that the act of location is at the same time the act of appropriation.” In Railroad Co. v. Blair, supra, where many similar points were presented, the court, with reference to the necessity of adopting a definite line of location, among other things said: “It may be time that the complainants first actually surveyed in the passes where the conflicts occur, although there seems to be some doubt on this subject. Rut, assuming it to bo true, the mere experimemtál surveying of a route will not confer any vested or legal right, until it shall have been adopted. Until then the company is in no wise committed to it. If done by their direction, they may change their mind and go elsewhere. It may be the mere act of their engineer; and he may recommend it or not. If he should, the company may reject it, and select another route. Although the complainants, therefore, may have first surveyed the conflicting passes in the mountains, yet the Warren Company afterwards surveyed the same passes, and first adopted the route, and first filed their survey in the office of the secretary of state. This gave them a legal right to the route surveyed, and in my view excluded the complainants from occupying the same lands.” 4. Has the complainant made out such a case upon this hearing as entitles it to a continuance of the restraining order heretofore issued? This is the vital point involved in the present hearing. It lias frequently been held that the question whether the defendant should be enjoined from the commission of certain acts before the rights of the respective parties have been fully investigated and tried rests solely in the discretion of the court. 10 Enc. PI. & Prac. 983, and authorities there cited. But in all cases essential facts must be clearly proven, in order to put the power of the court in motion and justify the issuance of the writ. As was said by the court in the early case of Bonaparte v. Camden & A. R. Co., 1 Baldw. 205, Fed. Cas. No. 1,617: “There Is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear; the injury impending or threatened, so as to be averted only by the protecting, preventive process of injunction.” The facts and circumstances of each particular case must always be considered, and the power of the court, whether in favor of or against the issuance of the writ,-should always be exercised in fnrtherance of justice. It is “the strong arm of the court, and to render its operation benign and useful it must be exercised with great discretion and when necessity requires it.” In the exercise of their discretion counts often take into consideration, even in grave and doubtful cases, the question as to whether the damage and injury committed or threatened by the defendant will be immediate, certain, and great if the injunction does not issue, and whether the loss and injury and — 894 — inconvenience to the defendant would be comparatively small and insignificant if it does issue; and in the consideration of these questions the courts have frequently said that an injunction should issue to restrain interference with the property, although the ultimate relief sought might finally be denied. City of Newton v. Levis, 25 C. C. A. 161, 79 Fed. 715, 718, and authorities there cited; Indianapolis Gas Co. v. City of Indianapolis (C. C.) 82 Fed. 245; Allison v. Corson, 32 C. C. A. 12, 88 Fed. 581, 584, and authorities there cited; Charles v. City of Marion (C. C.) 98 Fed. 166. It is true, as counsel for defendants contend, that the writ of injunction will not ordinarily be granted, where the legal rights of the patties are in dispute, until'the title and the legal rights to the property in controversy are established at law. But this rule is subject to many exceptions. The authorities are numerous where the courts, in a great variety of cases, in the exercise of the sound discretion with which they are invested, have interfered by injunction before the legal rights of the parties have been settled, and where the title to the-•real property remained undetermined. In Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 565, 28 L. Ed. 1116, it was held that if there was irremediable mischief, going to the destruction of the substance of the estate, done by parties in possession, the estate being in litigation at law, an injunction should be issued to prevent it. In that case the lower court had issued an injunction, but after a regular trial at law the defendant obtained judgment, and thereupon the court dissolved the injunction and dismissed the bill. From the decree in this regard an appeal was taken. In the course of the opinion the court said: “It was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, hut to leave the complaining party to his, remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court. In Pillsworth v. Hopton, 6 Ves. 51, which was before Lord Eldon in 1801, he is reported to have said that he remembered being told in early life from the bench ‘that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction.’ This doctrine has been greatly modified in modem times, and it is now a common practice in cases where irremediable mischief is beiiig done or threatened, going to the destruction of the substance of the estate, such as the extraction of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised. In such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title. Jerome v. Ross, 7 Johns. Ch. 315, 332, 11 Am. Dec. 484; Le Roy v. Wright, 4 Sawy. 530, 535. Fed. Cas. No. 8,273. As the judgment in the action at law in favor of the defendant has been reversed, and a new trial ordered, the reason which originally existed for the injunction continues.” See Wilson v. Rockwell (C. C.) 29 Fed. 674; Northern Pac. R. Co. v. City of Spokane (C. C.) 52 Fed. 428; St. Louis Min. & Mill. Co. v. Montana Min. Co. (C. C.) 58 Fed. 129; Buskirk v. King, 18 C. C. A. 418, 72 Fed. 22, 25, and authorities there cited. In Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 110 N. Y. 128, 133, 17 N. E. 680, 681, the judge at special term vacated — 895 — the injunction, theretofore granted, restraining the defendant corporation from interfering with the plaintiff’s roadbed, on the ground that the plaintiff had not acquired title to the land nor any right to occupy it. He stated that the proceeding of defendant was “outrageous,” but considered that he had no right to interfere. The general term, in their opinion, considered that a case had been-made for the allowance of a preliminary injunction, and that the same should be continued pendente lite, on the ground that the plaintiff had acquired a vested and exclusive right to construct and operate its railroad on the line it had located. The court of appeals came to the conclusion that the general term were right in the view they took of the matter. The court, after referring to the provisions of the general railroad act of that state for the organization of railroads, said: “Clearly there is involved in these provisions the intention of the legislature that, after the initial proceedings have been taken, which the statute points out as the iirst action of the new corporation, 1he lands over which the company’s route is located shall be subjected to the right of the com pany thereafter to construct thereon. The legislative scheme contemplates the determination of the line of route to be in the discretion of the company, to be exercised in the mode prescribed by law; and its exercise, when in good faith and within the limits of its corporate powers, is only reviewable by the court in the case of an application by an occupant or owner of lands feeling aggrieved by the proposed location of the road. This right to locate its line of road, at its election, is delegated to the corporation by the sovereign power, as is the right subsequent to acquire, in invitum, the right of Way from the landowner and any land needed for the operation of its road. In this sovereign power is the source of the franchise, which the corporation possesses, to construct and operate a railroad; and its grant is for public, and not for private, purposes. Public considerations enter into the grant of the franchise, and public policy favors the enterprise for the, public con. vonience and use. When, therefore, a corporation has made and tiled, a map and survey of the line of route it intends to adopt for the construction of its road, * * * in our judgment, it has acquired the right to construct and operate a railroad upon such line, exclusive in that respect as to all other railroad corporations and free from the interference of any party. By its proceedings it has impressed upon the lands a lien in favor of its right to construct, which ripens into title through purchase or condemnation proceedings. We could not hold otherwise without introducing confusion in the execution of such corporate projects, and without violating the obvious intention of the legislature.- The plaintiff’s franchises were invaded, and its enjoyment of the statutory privileges disturbed, l>y the action of the defendant company in so building tracks upon plaintiffs line of route as to obstruct and interfere -with its proposed construction. The remedy by injunction was clearly available to the plaintiff on principles of equity jurisprudence.” On'the question of injunction, this court, in the consideration of the line of survey from Clover Valley Junction to the southwestern end of the state line, as set forth in the supplemental bill, is hampered in the expression of its opinion upon the acts of the respective parties because no intelligent discussion could be had in regard thereto without reviewing the manner in which the surveys on behalf of the complainant were made, and the character of the work done on the surveyed line by the defendants thereon, and upon both of these points the land department of the government, having jurisdiction of these questions, has demanded a further hearing. Under these conditions I deem it to be my duty to respectfully decline to express my individual views in regard thereto. It is enough, for the purposes of — 896 — this opinion, to' say that as to this portion oi the line of survey the facts, as presented to this court, stand upon a different plane in some respects from the question relating to the line of survey over the roadbed from Uvada, via Clover Valley Junction, to a point near-Pioche. My conclusion upon the whole case is that the complainant has made out such a prima facie case as to entitle it to an injunction pendente lite as to that part of the right of way covered by the roadbed from Uvada to Clover Valley Junction, and from thence to Pioche, and that it has not made out such a case as to entitle it to the additional injunction as prayed for in the supplemental bill. Let a decree be entered accordingly.