Florida Central & Peninsular Railroad v. Bell

43 Fla. 359

• Court: Supreme Court of Florida
• Decided: June 15, 1901
• Status: Published

Opinion

Carter, J.,

(After stating the facts.)

These proceedings were begun and conducted under the provisions of sections 1544 et seq. Revised Statutes, regulating the exercise of the right of eminent domain; and section 1559 provides that in any case where the petitioner shall hot have acquired title to any .lands which it is using, it may proceed under those sections of the Revised Statutes to acquire such title. Section 1544, so far as applicable to this case, provides that in all cases where the right to take private property for public use without the consent of the owner has been heretofore or shall be hereafter conferred by the constitution, general law or special charter, upon any corporation, it may file a petition in the office of the clerk of the Circuit Court of the county wherein the property lies, which' petition shall set forth, first, the authority under which 'petitioner claims the right to take the property for public use; second, a description as accurate as may be of the property sought to be taken; 'third, the names of the occupants of the property and names, places of residence, legal disabilities (if any) and the interests of all owners and mortgagees, if the same by diligent search and inquiry can be ascertained; fourth, the purpose of the taking and that the property is necessary for that purgóse; fifth, that petitioner has located its line and intends in good faith to construct same o-ver the property.

There is incorporated in the third paragraph of the answer of the respondents objections by way of demurrer to the petition. If we concede that objections of this character can properly be raised by answer, we fail to- see wherein this petition is insufficient. We shall see in discussing another paragraph of the answer that the description of the land sought to- be condemned is sufficient, and we think in all other respects the allegations of the petition are sufficient under the statute quoted.

No proof was offered to- sustain the allegations in reference to the suits in equity and ejectment alleged to haye been pending in the United States courts, mentioned in the fourth and seventh paragraphs of the answer, nor was any proof offered with respect to the allegations in paragraph seven regarding the license and authority granted petitioner by the city of Tampa to- construct its road upon Whiting- street in that city; consequently further reference to these matters is unnecessary.

The fifth paragraph of the answer questions the sufficiency of the description of the lands sought to be condemned. It is argued by defendants in error that the use of the word “about” in the description renders it uncertain, but we fail to find that word used in any manner whatever in connection with the description contained in the abstract. The words “more or less” are used several times in stating the length of certain boundary lines, but these words are in each instance followed by language indicating definite points as the ends of those lines, and the latter language of course controls in running the lines. The description given points out definite and ascertainable boundaries for the parcel of land sought to be condemned, and is entirely sufficient.

The only matters set up in the answer left for consideration are those relating to the authority of the company to extend its road from Plant City to Tampa and to- corvdemn property for its use on that part of its line. The company was organized in July, 1888, under the General Incorporation laws of this State in respect to railroads and canals. According to its articles of association one of its lines extended from Waldo in Alachua county to Plant City in Hillsborough county. It is not denied that the company was legally incorporated, nor that the line from Plant City to Tampa would be an extension of the line from Waldo to Plant City, which last named line was specially embraced in its original articles of association and the charter issued to- it. It is contended, however, that the company could not extend its line from Plant City to Tampa without an amendment of its charter or articles of association, and that the amendment attempted to be made in T890 is not sufficient to authorize the construction of such extension. Petitioner was incorporated under the provisions of Chapter 1987, approved February 19, 1874. By section 1 of that act it was provided that any number of persons, not less than three, might form a company, and for the purpose of organizing were required to give public notice in a-certain specified mariner and to make and sign articles of association, in which was required to be stated the name of the company, the places to and from which the road was to be constructed or maintained and operated, the length of such road, as near as may be, and the name of each county in t'he State through or into which it was made or intended to be made, the amount of capital stock, the number of shares into which it was to be divided, and the names and places of residence of the directors of the company who should manage its affairs for the first year, to consist of not less than, three. Other requirements not necessary specially to notice are set forth; after compliance with which the Governor and Secretary of State were authorized to issue their certificate in the form therein prescribed, and thereupon the persons who subscribed the articles of association and all persons who should become stockholders in the company are declared to be a corporation by the name specified in the articles of association and declared to possess the powers and privileges granted to corporations and to be subject to the provisions contained in that act. It is not denied that all the provisions of this act were complied with in organizing the petitioner corporation.

By section 10, every corporation formed under the provisions of the act was empowered, among other things, to cause such examinations and surveys for the proposed railroad to be made as shall be necessary to the selection of the most advantageous route, and for such purposes by its ■officers, agents and servants to enter upon the lands and water of any person for that purpose, to lay out its road not exceeding two hundred feet in width and to construct the same, and for the purpose of cuttings and embankments, and for obtaining' gravel and other material to take .as much land as may be necessary for the proper construction, operation and security of the road or to cut down any trees that may be in danger of falling on the road, . making compensation therefor as provided in that act for land taken for the use of the company. Section 12 is as follows: “Any railroad or canal compay now existing or hereafter organized under the laws of this State may, under the provisions of this act, extend its railroad or canal from any point named in its charter or articles of association, or may build such branch roads from any point or points on its line of road. Before making any such extension or building any such branch road or canal such railroad company or canal company shall, by resolution of its board of directors, to be entered in the records of its proceedings, designate the route of such proposed extension or branch in the manner prescribed in section one of this act, and file a certified copy of such record in the office of the Secretary of State, and cause the same to- be recorded as provided in said section, and thereafter such railroad or canal company shall have the right to make such extension or build such branch the same as if it had been authorized in its charter or articles of association.”

It seems to be clear that no specific amendment of the . articles of association or charter of a company organized under that act was necessary in order to enable such company to extend its railroad from any point named in its charter or articles of association, for the very statute under which it was incorporated gave it the right so to do under its original charter upon complying with the provisions of section 12, “the same as if it had been authorized in its charter, or articles of association.” The limitations upon its right to extend were, that before making same the company must by resolution of its board of directors, to be entered in the records of its proceedings, designate the route of such proposed extension in the manner prescribed in section I of that act and file a certified copy of such record in the office of fhe Secretary of State and cause the same to be recorded' as provided in that section. It required no specific amendment of the charter,no action of the stockholders of the company, but simply a resolution of the board of directors designating the route of the proposed extension in the manner stated and the filing and record of same in the office of the Secretary of State, in order to authorize the construction of an extension of its road. We think the resolution adopted by the directors October 31, 1889, though inartificially drawn, a sufficient compliance with section 12 to authorize the extension without regard to the other proceedings of the directors and stockholders attempting to amend the articles of association. The resolution referred to' designates the route of the proposed extension as being from Plant City to- Tampa both in Hillsborough county, and the only defect that can be claimed in. the designation of the route is the omission to state the length of the extension as near as may be. We can not see that this omission can. in any manner affect the tights of persons whose lands are sought to be condemned along the route selected, and even if the statute contemplates its insertion in the resolution, we think its omission is a matter between the company and the State, in no manner affecting any substantial right of the respondents.

We have seen that the compan}'- was authorized to construct the extension, and it appears from the pleadings and evidence that such extension had in fact been constructed and in operation for several years prior to the 'institution of these proceedings. The only other question" to be considered is whether the company is invested with power to condemn property along the line of this extension. This right must be tested by the provisions of the Revised Statutes which were in force when' these proceedings were beg-un. By paragraphs one and four of section 2241 Revised Statutes, the provisions previously quoted from section 10, Chapter 1987, approved February 19, 1874, are re-enacted and continued in, force, and by section 2158 it is provided as follows: “The president and directors of any corporation organized for the purpose of constructing, maintaining or operating public works, or their properly authorized agents, may enter upon any lands, public or private, necessary to the business contemplated in the charter, and may appropriate the same, or may take from any land most convenient to their works any timber, stone, earth or other material which may be necessary for the construction and the keeping in repair of its works and improvements, upon making due compensation according to law to private owners.” There is no doubt in our minds that railroad companies possessing the powers given petitioner by law, and organized for the purposes for which it was organized, are within the meaning of that section “organized for the purpose of constructing, maintaining or operating public works,” and that by virtue of that provision and of paragraph 4 of section 2241 Revised' Statutes the petitioner is given power to condemn property not only for the purpose of its main lines authorized by its original charter, but for extensions of such lines upon compliance with the terms of the statute authorizing such extension.

It follows from what has been said that the judgment of the Circuit Court is erroneous, and must be reversed.

The judgment is reversed, and the cause remanded for further proceedings conformable to law, and not inconsistent with this opinion.