Miller v. Prairie du Chien & McGregor Railway Co.

34 Wis. 533

• Court: Wisconsin Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Lyon. J.

We are compelled to differ with the learned circuit judge in the views which he took of the scope and extent of the powers and franchises granted by the general railroad law to corporations organized under it. We think that the law authorizes the organization of corporations with power to build railroads from any given point in the state or in any boundary line thereof, to any other point therein, and if any railroad constructed between such points crosses a navigable stream, the law authorizes the building thereof over such stream, subject only to the restrictions specified in the law. This construction of the statute removes the objection which the circuit court held was fatal to the validity of the patent, to wit, that there was no legislative act in existence authorizing the railway company to construct its railroad over navigable waters.

But we think that the order appealed from must be reversed on another ground. We hold that the validity of the patent cannot be adjudicated and the patent held invalid, on an appeal by the original land owner from an award of damages. If the plaintiff appeals from such award, he must be held as admitting that the defendant company is lawfully organized, with power to procure a condemnation to its use of the land in question.

The questions of the corporate character of the defendant, and its right to take the land by condemnation, can only be raised before the court or judge when the application is made for the appointment of commissioners, or in the supervisory court to which the proceedings may be removed by certiorari, or in some other direct proceeding to the same end, authorized by law.

' The order of the circuit court, quashing the award and other proceedings, must be reversed; and the cause will be remanded for further proceedings according to law.

By the Court. — It is so ordered.