wljat the ultiqlat,ely lose or gain,. as the case amlwt certain that may be;.cannotaffectthe the evjdence furnished the meatUs ascertaining pre!thll,amount of charges to, be and consequ:entlythe amount to be If so, counsel agree upon the amount, ,and it will be the If not, I will send it t,o a .referee to lUlcertain the1?rokl'll'age apd charges. ,'l'he,contract fixed at 21 per shows commissions been paid. ,Letthere be findings and judgment in pur· sUllIlceo!this opiniop.' '
"DENYcEa R. L. & 0.' 00.
UNION PAC. Ry. CO., (three cases.)
, (Of1'cui' Ooufo4,]).
C)F THE,US:m . ,'
TM constitution of Colorado,' art; 15, § 4, declaring all railroads to be pub, lichlgAw:a.ys, not prevent the raising of the question as to the qf a in a, by it to condemn land; artiCle,21 § 15, providing that "whenllver an attempt IS made to take private property tor a use alleged to be pnblic.the question whether the Contemplated use be really public shall be.a question, and determined as such without regard to any legisla, tive assertion that the use is public. "
In proceedings an answer alleging thll,t the plainti:ff WRS organized and is, a private feu the purpOSli of constructing and oW erating.a,·railroad, witllOut averring that the railrQad itself, when built, will be a prlvateroad, is defective. 'as it is the object to which the land is to be ,devoted. and notthe party claiming the right to take land,that isrequired to be public.;
OF LAND TO Bm AOQ,umF;D-PLEADmG.
. '. When a petition in condemnation proceedings alleges that the land sought " to be condemned il private land; held by defendant. a corporation, for other ,purpol\es thantbe b,usinessinwhiph is engaged. and the averments in the , answ;er :d.efendants' the businells in it is engaged, and 'that thelandis necessary for the purposes ofsuchbuslDess, the answer " is sufficient on demurrer. An, anllwer, to a petition tQcQndemn land, alleging that tbe articles of incor· poration Of the petitioner cOlJlpany, which are not set out either in the peti'tion or'atlS-wer, are not sufficient· to enable it to maintain its action, without specifying the particulars in wllich Such articles Bre deficient, will pe stricken : out. ,,' , ·An answel'8.verring that the petition does not state sufficient facts to consti\ute & cause, of ,action is, in e1'fect.ademurrerj, and oil motion will be out.
IN,COm'ORATION. ' ','",
At Law. part of answer.' ,
to strike out, part of answer and demurrer to condemn Illnd by thepenver Railroad Land & Coal Union Pacific RailwayCompll-ny,
fl... " "': "
UNION' PAC. RY. 00.
L.M. Qu,thbert, forplairi:tHf. :. .'. . . '.' . ':: WiUard Teller a.nd M. Or:ehiJdd, for defendanfS.
: ,: j
HALLETT, J. In 'the three condemnation cases the Denver Land & Coal Company against the Union.Pacific RailwayCo,mpimy there was a motion to strike out the answers, which was passed upon a few days ago, on the ground that no such could be allowed. in a case of that kind. That motion was overruled. The plaintiff has raised to the several answers by motion and by demurrer as to their merits. The first answer is that the petition herein does Mt lltate sufficient facts to constitute a cause of action, and does not state facts which entitles the petitioner to theactioIi and prayed for and demanded in said petition. The plaintiff is, of course, right in saying that this is only a demurrer and not an answer at It must be struck out. The second answer is that the articles of incorporation of the said petitioner are not sufficient, and do not authorize the petitioner to maintain this action, or to appropriate or condemn the land as prayed for in said petition; Thearticles of not set out in the petition, and they are not set out here. Of course the defendant cannot make any objection to the articles of incorporation in this general way without specifying what his objection is or in what respect the articles are not sufficient. The answer will be struck out. The third answer is that "the defendant, further answering, respectfully shows to the court and alleges that the said company was organized and is a private corporation for the purpose of constructing and operating a railroad from certain coal lands owned, as alleged by the petition,to Denver, and for the purpose of hauling its coal frorp said lands to the city of Denver, as private enterprise, and not for the accommodation of the public in any wa,y or manner This answer appears to be intended to present the question that the road built by the petitioner is a private road, and not for public use. It is, however, rather indistinctly stated. The averment is that the company was organized for this purpose, and as a private corporation, without a distinct statement as to what. the road will be if built. The inquiry is not as to what the company was organized for, or whether it will be a private or public corporation, but what the road will be,-the structure itself,-if any such thing shall be made. I regard it as a serious defect in the anSwer, and don't think it can be a question of fact to be tried, whether this company is organized in one way or another, except it may be to inquire whether it conforms to the statute regulating such matters; Lut it may be a question of inquiry to be determined as matter of fact, whether the road, when built, will be a public or private road, and the question will be the same whether the road shall be bliilt by a corporation or by an individual. That question does not in any way appertain to the other, by whom the road is built. It is a question what road not as to the character, or the quality I)f the builder. But,t;iking the answer to be a statement that the road will be priy&te and not public, and is intended so to be, petitioner denies that any answer can be made or received in an aotion of this kind, and he fOUl\ds
DENVER R. L. & C. 00. V. UNION PAC. RY. 00.
;n the same course.. -I cannot accept any such position or proposition-as that; in fact I regard it as exceedingly technical and far-fetched, and it is certain that in in courts where these proceedings have been recognized elsewhE)re no such position has been taken, nor has it been thought necessary to discuss it. Here is a case from It state in which the rights of corporations in condemnation proceedings certainly have not been ignored, which seems to go as far as the counsel for defendant asks the court to go in this instance. This case is Railroad 00. v. Wiltse, 116 Ill. 449, 6 N. E. Rep. 49. A question arose in the case as to the character of the use upon the evidence, no answer being received in that state as to any of these matters; but upon the hearing evidence was received to show that the track which petitioners sought to build was only for the purpose of connecting its main line wit4 some brick-yards, which were not very far from the line of the road. Concerning the power of the court to make such an inquiry, the court says: "The questions, however, of whether the use to which it is sought to appropriate the property is a public use or purpose, and whether such use or purpose will justify the exercise of the compulsory taking of private property under the statute and constitution, and where the power is attempted to be exercised by an incorporation, whether the power is delegated to the corporation by the legislature, and whether the uses and purposes for which such power is sought to be exercised fall within the legislative grant of powers, are proper subjects of judicial determination." . For which a large number of authorities are cited. "It is evident from the evidence in this case that the sole use and purpose of the proposed track was to reach the brick works situated between a half and three-quarters of a mile from appellant railroad, and thereby create a feeder to its main line, and add to the value of its freights. There was no pretense that there was any necessity for any increased facilities in the locality of the proposed track, except for the purpose of slIving the hauling of bfick from these brick works, aUlI the increased tl'affic brought to appellant';'! main line by the building of this spur." Further on: that this proposed track in no way increases or adds to the facilities for transacting the business of the railroad appellant is authol'izeLl by its charter to build and operate, but, on the contrary, by adding to the volume of its freights, would tend rather to embarrass the main line of road than otherwise." This discussion is quite lengthy l and it full to the point that whether the road is to be public use or a private road is fully open to inquiry and decision in all cases of this kind, and other authorities are not wanting:. A year ago, or nearly so, in the case of McPhee and another against the Union Pacific Railway Company, (an equity case, in this court,) the same rule was followed; and upon the charges in the bill in that ca,se it was held that a track which the Union Pacific Company wasprol'OSing to lay down in some parts of this town was only a private road for serving certain warehouses, not of a public character, which wouldenabletheIll to proceed i l1 ,()pposition to the in
"It is conceded, substantially, and the evidence abundantly shows the fact,
':the neighborhood: ;If answer directed to.the·· quality of tlie 'road petitioner'propoRes to build, rather tharl'the' purposes of petitioner's it would be llound; As it 'stands it is not a good answer,'atld'mustibe struck . The fourth answer is that it is not necessary for the petiti9ner to appropriate for use or occupy the lands and premises i'nsilid petition described, or any part thereof. An aver, ment of that kind cannot be made \vithout the facts showing that the necessity does exist. That also must go out. The fifth 'and last answer is subject of a demurrer. In that the defendant shows its incorporation, arid the service in which it is engaged, and alleges that these lands were purchased by it for its own use, and that they are necessary forthe purposes of its organization. It is alleged in the petition that the lands are not in use at all, Rnd in substance that they are private lands held by the Union Pacific Company for purposes other than the service in which it is' engaged. This answer, in myjudgment, meets those allegations. Whether there is any use now made of the lands, such , as claimed by the respondent, and denied by the petitioner, can only be .ascertained upon and itis only afterhearing the evidence ,#lat any decision of matters such as are presented in this answer can be reached. "It is impossible to determine the rights of the parties upon petition and upon the answer only. They are in issue by these charges and coun,ter-charges,ll.nd,we must wait for the evidence before determining the merits of the controversy.' The position of the petitioner that no such answer can be ma.de is subject to the same rule as the defense in respect to the use to be, made of the property. The argument of counsel that .because these things are by the statute not to be submitted to the jury, therefore they cannot be considered at all, is of no weight. Probably it is true that questions which are directed to a jury or to commissionersby the statute ,are to be considered by them, and by them only. It doesnotfol1ow fr()ol this that there may not be any other questions raised, or that there may not be any other methodE! of reaching a decision upon such questions than those that are mentioned in the statute. The demurrer to the fifth answer must be overruled, and the motion to strike out as to an the others allowed.
(Oirc;uit Court, E. D. Renn8ylvania. January 17, 1888.)
ttATENTS FOR INVENTIONS- ·ANTICIPATIOIl'..
Letters patent No. 18l\027. issued December D, Hl76, to Thomas Halton for improvemep,t i!l' Jac9uard looms, claim the construction of the griffs, Or those raIse tbe hooks, of such breadth that when the griffs are elevated the blade still rests below the top of the hooks out of operation, and when the griffs descend the danger of striking the heads of these idle hooks is avoided. OJ) evjdence of prior use at Paterson ap,d Brooklyn; of the Brit· ishpate!l.t issued March 14, 1870, to John Morris for an improvement by mak-