Citation Numbers： 24 Idaho 441, 134 P. 536
Judges： Ailshie, Stewart, Sullivan
Filed Date： 8/19/1913
Status： Precedential
Modified Date： 1/2/2022
This is an original proceeding in this court for a writ of prohibition, and is based upon an affidavit of Joseph T. Carrol and William Dollar. The facts stated in the affidavit are that Carrol is the vice-president and general manager of the applicant, the Coeur d’Alene Lumber Company, and that Dollar is the secretary-treasurer of the applicant, the Staeks-Gibbs Lumber Company, and that affiants make this affidavit for and in behalf of these applicants and the other applicants, Charles A. McLean and Mrs. Charles A. McLean, husband and wife ¡that the applicant, the Coeur d’Alene Lumber Co., is a corporation created, organized and existing under the laws of the state of Washington and authorized to do business and to acquire and hold property in the state of Idaho with its principal place of business in the city of Coeur d’Alene (which corporation for convenience will hereafter in this opinion be designated the Coeur d’Alene Company); that the applicant, the Staek-Gibbs Lumber Company, is a corpora
Then follow allegations which are somewhat lengthy and many of which this court is of the opinion are not essential in determining the issues involved in this ease. The essential and controlling allegations are those which are claimed to show that the railroad company was organized with a capital of $25,000, divided into 25 shares of the par value of $1,000; that 23 of the shares were subscribed by J. F. Cox, the president of the railway company, one share by Reiley and one by King, and that there is no evidence that any of the subscriptions have been allowed and paid; that the subscribers to the stock are men of small means; that Cox and Reiley are not financially able to pay their subscriptions; that the proposed railroad is only four miles long, and that the railway company has no locomotive, cars, rails or other railroad equipment of any kind, and that the rails, locomotives and' other equipment to be used in operating the railroad are leased for a short time only and for temporary purposes only; that the ears to be used are to be furnished for temporary purposes only by another railroad company; that no part of the equipment will become an asset or assets of the railroad company which would be subject to the indebtedness of the railway company; that the railroad, if constructed, will be
Then follow allegations in regard to the filing of a complaint on the 28th of December, 1912, to condemn the lands of the applicants for a right of way for a railroad for the transportation of logs to market. Thereafter proceedings were had, attorneys appeared, and hearings were had which resulted in dismissing the plaintiff’s complaint and no appeal was taken. Thereafter Cox caused the Renfro Creek Railway Company to be incorporated, which company brought the action on March 7, 1913, heretofore referred to. The latter action for condemnation involves the same lands which Cox originally sought to secure by trespass.
Then follow allegations that the lands owned by the applicants are timber lands and that the railroad company seeks to have a right of way across said lands; that such lands are valuable principally for timber and are covered with a heavy growth of pine, fir and cedar and other merchantable timber, all of which is of great value; that said timber is in great jeopardy from danger by fire, and that the operation of said railroad would very greatly enhance the fire risk and danger and would entail very great expense upon the applicants in guarding the timber from fire; that this application is prosecuted in this court in good faith and honest belief that in refusing to order a stay of proceedings pending the hearing and determination of the appeal, and in refusing to direct the commissioners to suspend the actions and proceedings under the order, the district judge exceeded his jurisdiction, and that the commissioners in refusing to suspend their action in said condemnation proceedings are acting without and beyond
The defendants filed a demurrer to the application for the writ of prohibition and moved the court to dismiss the same. Both the demurrer and the motion state the same grounds, which are as follows:
“1. That the said petition for writ of prohibition does not state facts sufficient to constitute a cause of action against the defendants, or either of them.
“2. That the plaintiff and petitioners have no standing herein for the reason that they, and each of them, have a plain, speedy, adequate and complete remedy at law by appeal and by the trial of said condemnation suit, stay of proceedings in which is sought in this proceeding.
“3. For the reason that it appears from said petition that the said district court and.the judge thereof had jurisdiction of the subject matter of the suit and of the parties, and in proceeding was acting regularly and in accordance with the laws of the state of Idaho and not in excess of the jurisdiction of said court or of said judge.
“4. That it appears from the said petition that the said commissioners, defendants herein, had jurisdiction of the subject matter, and that said commissioners in proceeding were acting within their jurisdiction and in accordance with the laws of the state of Idaho.
‘ ‘ 5. For the reason that under the laws of the state of Idaho proceedings in condemnation cases are not stayed by the perfecting of any appeal from any order in such condemnation cases. ’ ’
The first ground of demurrer presents the question of the sufficiency of the application. Three other grounds of de
The defense in their brief and in the oral argument have not argued or contested the right of the applicants to apply for a writ of prohibition, and for that reason we will not discuss the same.
Upon the second question, as to the right of appeal in the condemnation suit in the district court instituted by the railroad against the applicants for the condemnation of property of the applicants for a right of way, the record shows that in the present ease there is attached to and made a part of the application the entire proceedings in the condemnation suit in the district court, including the findings of the court and the judgment. The findings show that the court found, among other things, that the plaintiff is a railroad corporation, organized and existing under and by virtue of the laws of the state of Idaho, and has fully complied with all the provisions of the laws of the state of Idaho with respect to railroad corporations, and that it was authorized to acquire lands by purchase or by exercise of eminent domain for the uses and purposes of such railroad; and that the plaintiff has caused to be surveyed, laid out and staked upon the ground and located its line of railroad, and has acquired lands for right of way, which are fully set out in the application, and that for the purpose of construction, maintenance and operation of the railroad it is necessary for the plaintiff to acquire, have, take, hold and appropriate the particular portions of said parcels of land and each of them referred to and particularly described in the amended complaint of the plaintiff on file herein, to which reference is hereby made; that the object for which said lands are sought to be appropriated is for the construction, maintenance and operation of plaintiff’s railroad and branch railroad, and for such use by the plaintiff in its business as a common carrier, and that said objects are public objects, and that the plaintiff will operate and maintain said railroad and said branch railroad as a common ear
The court also found, as a conclusion of law, that a commission should be appointed to assess the damages which the defendants, and each of them, may be entitled to by reason of the taking .and appropriation of the said lands by the plaintiff; that judgment of appropriation and condemnation in the form provided by law be made and entered therein.
Upon the findings heretofore mentioned, together with other findings, the trial court rendered a judgment in favor of the plaintiff, and in the judgment, among other things, it is decreed that the plaintiff has the right and power to condemn and appropriate the property of the defendants, and each of them, sought to be appropriated, and that a necessity exists for the condemnation and appropriation thereof, and that the use to which the plaintiff seeks to apply the lands of the defendants, and each of them, is a public use authorized by law, and that the taking of the lands of the defendants is necessary to such use. It was further ordered that three disinterested persons, who are citizens and residents of the
. The applicants rely upon see. 4807, Rev. Codes, as amended by Sess. Laws 1911, p. 367, which provides that “An appeal may be taken to the supreme court from a district court: 1. From a final judgment in an action or special proceeding commenced in the court in which the same is rendered .... within sixty days after the entry of such judgment.” Our attention is also called to sec. 5228, Rev. Codes, which is a part of title 7 relating to eminent domain, which is in the following language: “Except as otherwise provided in this title, the provisions of this code relative to civil actions and new trials and appeals, are applicable to, and constitute, the rules of practice in the proceedings in this title.”
We think it is clear that sec. 4807, as amended by Sess. Laws 1911, p. 367, and sec. 5228, relating to civil actions and new trials and appeals, are applicable to and constitute the rules of practice in proceedings in condemnation actions. The judgment appealed from is a final judgment upon the issues presented in the condemnation proceedings, which involved the right of the plaintiff in the action to maintain a condemnation action, and the necessity of the condemnation of the lands sought to be condemned, and the judgment upon such issues from which the appeal is taken is the basis upon which demand is now made in this action for a writ of prohibition. We are satisfied that the judgment so entered is a final judgment upon the issues raised upon the pleadings and embraced in the findings and the judgment entered, and this conclusion we think is inevitable in view of the provisions of sec. 5226, Rev. Codes, when construed with sees. 4807 and 5228. If such appeal could not be maintained, then see. 5226 would be of no force or effect. (Portneuf Irr. Co. v. Budge, 16 Ida. 116, 100 Pac. 1046, 18 Ann. Cas. 674.)
The supreme court of Wisconsin, in the case of State v. Oshkosh A. & B. W. R. Co., 100 Wis. 538, 77 N. W. 193, had under consideration a question very much in point in this case, although in that case the right of appeal is provided for by statute, and the court announces the following rule: “Where a corporation organized to construct and operate a railroad commenced proceedings to condemn a right of way across the tracks of a railroad company, an order appointing commissioners against defendant’s objection that the petitioner did not have the right of eminent domain, is appealable, since it is a final order made by the court in a special proceeding.”
In the case of In re St. Paul & N. P. Ry. Co., 34 Minn. 227, 25 N. W. 345, the supreme court of Minnesota, in discussing the question of appeal in condemnation suits lays down the following rule: “Such order is a final order in a special proceeding and hence appealable. Among other things, it determined that the lands proposed to be taken were required and necessary for the proposed improvement. The question so determined would not again arise or be considered in the course of any subsequent proceedings, but was determined once for all, and affected a substantial right.”
The supreme court of Minnesota, in the case of In re Jones, 33 Minn. 405, 23 N. W. 835, discussing a similar question, held: “The order was appealable. It was within the statute
While the court in announcing the rule in such case used the word “order,” and in the case now under consideration the determination of similar questions is designated a “judgment,” we think “judgment” and “order” are used in the same sense, but whether the action of the trial court is designated as an “order” or a “judgment,” the order or judgment shows that the questions determined were that the lands proposed to be taken were required and necessary for the proposed improvement. The questions so determined by such order or judgment would not again arise or be considered in the course of any subsequent proceeding in this action; then the judgment or order does not fall within, and is not subject to the rule applied to a nonappealable order, but such order or judgment is a final order or judgment affecting a substantial right made in a special proceeding and may be reviewed on an appeal from such judgment or order.
The next contention of counsel for applicants is: Does the appeal stay the proceedings in condemnation proceedings as determined by the district court?
Chap. 2, tit. 13, Rev. Codes, relating to appeals to the supreme court, contains secs. 4810 to 4817, inclusive, wherein provisions are made with reference to sec. 5226 as to whether such sections apply in condemnation proceedings. See. 5226 in part refers to the possession by plaintiff of property in condemnation actions during the pendency of the suit, and is identical with sec. 1254 of the Code of Civil Procedure of California. In the case of San Luis Obispo Co. v. Simas, 1 Cal. App. 175, 81 Pac. 972, the supreme court of California had before it and construed the statutes of that state relating to the provisions of the general statutes granting a stay by filing an undertaking on appeal with reference to the provisions of eminent domain statutes granting possession by plaintiff
“The right of the court to make the order letting plaintiff into possession pending the appeal is denied. When the money was paid into court it was so paid for the owner, as is required by the constitution. (Spring Valley Water Works v. Drinkhouse, 95 Cal. 22, 30 Pac. 218.) Its amount had been determined by a valid judgment, which had been fully executed. (Steinhart v. Superior Court, 137 Cal. 578, 92 Am. St. 183, 70 Pac. 629, 59 L. R. A. 404.) In the case of City of Los Angeles v. Pomeroy, 132 Cal. 341, 64 Pac. 477, the appeal was taken before payment or final order. Since that decision was made, section 1254, Code of Civil Proc., has been so amended that as now in force it must be taken as creating an addition to the class of cases theretofore constituting exceptions to the general stay of proceedings provided for in sec. 941, Code of Civ. Proc. There was no error, therefore, in making the order or in refusing to permit proof of the appeal. ’ ’
See. 4825, Rev. Codes, provides: “When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order, so far as the restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment, or had under process issued upon the judgment on the appeal from which the proceedings were not stayed; and for relief in such cases, the appellant may have his action against the respondent enforcing the judgment for the proceeds of the sale of the property, after deducting therefrom the expenses of the sale. When it appears to the appellate court that the appeal was made for delay, it may add to the costs such damages as may be just. ’ ’
This court had under consideration the taking possession of property upon payment of compensation, in the case of Portneuf Irr. Co. v. Budge, 16 Ida. 116, 100 Pac. 1046, 18 Ann. Cas. 674, and said:
“Now, it is argued by the plaintiff that after the fixing of this compensation by the commissioners and payment of the same by the plaintiff or into court for its benefit, possession may be taken and the property wasted, despoiled and ruined, and that thereafter the condemnation proceeding may be dropped or may terminate in favor of the land owner, in which event it will receive nothing for the damages and waste committed during the occupancy. That argument is successfully answered by the statute itself. The damages that will be sustained by the taking will be assessed by the commissioners before the entering upon the property by the company. The land owner will have the privilege and right of actually receiving that compensation in cash before the entry is made. If the company should ultimately fail in the proceeding, or should not prosecute the proceeding further, the land owner will still have the legal title to his property and also the value of the property as assessed by the commissioners.”
In the case of Reed Orchard Co. v. Superior Court, 19 Cal. App. 648, 128 Pac. 9, 18, many questions urged in this ease were carefully reviewed, and application was made for a writ of supersedeas to prevent the condemning party from taking possession of the property during the pendency of the appeal and a demurrer was filed to the application. In the opinion in that case the court approved the case of San Luis Obispo Co. v. Simas, supra, and held that where the statute provided that in condemnation cases proceedings should not be stayed, the provisions of the general law granting a stay of proceedings upon the filing of the bond upon appeal were not applicable ; this was based upon the principle of law that where
The sections of the statute heretofore cited, including see. 5226, Bev. Codes, wherein it is expressly provided that the condemning party should be let into possession, clearly provide for an appeal from a final judgment in an action or special proceeding, and that such appeal does not stay or interfere with the rights of either party to the condemnation suit to proceed in the district court or upon an appeal as provided by law. The authorities above cited clearly support the principle covered by the several sections of the statute above cited.
There are allegations in the petition, and argument was made upon the hearing, to the effect that the railroad company was not organized for the purpose of serving the public, but was organized for the sole purpose of carrying lumber and logs for personal use, and that there was to be no public use when the railroad was completed and put in operation. The court, however, finds in this case that the railroad company was organized under the laws of the state and for a public use, and under the constitution of this state, sec. 5, art. 11, that all railroads are public highways and common carriers, which brings it within the constitutional and statutory requirement that all railroads are to be public highways and common carriers “subject to legislative control,” and it matters not what the intention of the corporation is or may be, it is made a common carrier by the constitution, and if the railroad company refuses to perform any of the duties it owes to the public, it may be compelled to act, and if it fails to operate its road, the property condemned reverts to the owner of the freehold. (Portneuf Irr. Co. v. Budge, 16 Ida. 116, 100 Pac. 1046, 18 Ann. Cas. 674; Connolly v. Woods, 13 Ida. 591, 92 Pac. 573; Bridwell v. Gate City Ter
The demurrer, therefore, to the petition in this case for a writ of prohibition is sustained, and the alternative writ heretofore issued is quashed and the writ of prohibition denied. Costs awarded to the defendant.