Holbert v. St. L., K. C. & N. R. Co.

45 Iowa 23

• Court: Supreme Court of Iowa
• Decided: December 7, 1876
• Status: Published

Opinion

Day, J

i railroadporalon0-01" l-igbt of way. I. The defendant is a corporation organized under the laws of Missouri. The authority to take land for ^e right of way for railroads is conferred by express provision of statute, and must be exercise(i jn £he manner prescribed. The statute under which the plaintiff’s damages were assessed by sheriff’s jury provides: “That any railroad corporation in this State heretofore organized under the laws of this State, or that may be hereafter organized, may take and.hold, under the provisions contained in this act, so much real estate as may be necessary for the location, construction and convenient use of their road.” Revision, section 1314.

The right is conferred upon corporations organized under the laws of this State, and is, by necessary implication, denied to foreign corporations. In The Bank of Augusta v. Earle, 13 Peters, 519, Mr. Chief Justice Taney announcing the opinion of the court said: “ It is very true that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law, and by force of the law; and where that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty. But, though it must live and have its being in that State only, yet it does not by any means follow that its existence there will not be recognized in other places; and its residence in one State creates no insuperable objection to its power of contracting in another. * * * * * Every power, however, of the description of which we are speaking, which a corporation exercises in another State, depends for its validity upon the laws of the sovereignty in which it is exercised; and a corporation can make no valid contract without their sanction, express or implied.” Whilst, therefore, a foreign corporation might, respecting a proper subject, make a valid contract in this State, it could make no suck contract for the acquisition of the right of way for the construction of a railroad, since power to acquire such right of way is conferred only upon corporations organized under the laws of this State. Section 1317 of the Bevision provides that if the owner of any real estate over which said railroad corporation may desire to locate their road shall refuse to grant the right of way through his premises, the sheriff of the county shall, upon the application of either party, appoint six disinterested freeholders to assess the damages which the owner will sustain by the appropriation of this land. We think it is clear that a foreign corporation could not institute this proceeding to condemn right of way and assess the damages of the land owner. And, as the right conferred is a reciprocal one, it must follow that the land owner cannot institute such proceeding against a foreign corporation. Such a corporation has no power to acquire or possess right of way in this State, and ought not to be required to pay for that which it cannot legally enjoy. The statute authorizes the proceeding for condemnation and assessment to be instituted only against a railroad that may by such proceeding become entitled to the right of way and the privileges connected with it. We think the plaintiff acquired no legal rights under the condemnation proceedings by him instituted.

2. ——: .mjuno II. This brings us to a consideration of the relation of the parties and their respective rights, independently of the proceedings instituted for the assessment of.damageg> qqie gk Louis & Oedar Bapids Bailroad Company has constructed a road over plaintiff’s premises, and the defendant, by mere sufferance, is in the exclusive occupancy and use of said road. Neither company has paid plaintiff the damages occasioned by the appropriation of the right of way, and both are mere trespassers. Hibbs v. The Chicago & South Western Ry. Company, 39 Iowa, 340. This court has held that an injunction will lie to restrain a railroad company from operating its road, after an award of damages under the statute, until the damages' are .paid. Henry v. D. & P. R. Co., 10 Iowa, 540; Richards v. D. M. V. R. Co., 18 Iowa, 259; Hibbs v. C. & S. W. R. Co., supra. And in Conger v. The B. & S. W. R. Co., 41 Iowa, 419, it was held that ejectment would lie under such circumstances. These all were cases where the railroads were organized under the laws of this State, and were entitled to the right of way upon making proper payment therefor, and where either party might institute the proceedings for condemnation and the assessment of damages. In this case, as we have seen, the defendant, although using plaintiff’s land, is not entitled, to right of way, and no proceedings can properly he instituted for the assessment of damages. ' Under these circumstances the right to an injunction ought not to depend upon the fact of a prior assessment of damages. The defendant ought not to be permitted to shield itself by the plea that it is a foreign corporation, against which damages cannot be assessed, and at the same time to continue to use plaintiff’s land. Whilst the'defendant may not be compelled to pay the damages awarded, it may be restrained from using plaintiff’s premises until plaintiff is in some way compensated for the right of way appropriated over his land. It is, therefore, ordered that the plaintiff be awarded an injunction restraining the defendant from further occupying or using the premises in question' until the defendant voluntarily pays the damages already assessed, or until the company wdiieh constructed and owns the railroad in question causes the plaintiff’s damages to be assessed and paid.

Thus modified the judgment of the court below is

Affirmed.