to every state of case that may arise under this statute; and it would not be proper or safe to enumerate supposed cases that would be within or without the statute. It is sufficient to give the jury an exp03ition of the statute applicable to the facts of this case. Other cases depending on a different state of faots will be decided when they arise. The jury are therefore instructed that if they find, from the evidence, that the defendant owed the plaintiffs the debt sued for in this action, and that it was due, and tLat the defeldant was in the habit, in the course of his business as a merchant, of investing his capital and credit in cotton, and shipping the same out "f the state, and that the cotton thus shipped within a period of about 60 days, immediately preceding the date of the writ in this case, constituted a material portion of the defendant's property, and that :lfter such shipment the. defendant did not have enough property left in the state to satisfy his debts, then the attachment was rightfully sued out, without reference to the motive or intention of . the defendant in shipping suohcotton. But if the cotton so shipped did not constitute a material portion of his property, or if he had property left in the state after its shipment sufficient to satisfy his debts, then the issue must be found for defendant. Verdiot and judgment sustaining the attachment.
B. & M. R. CO. and others
(Circuit Court, D. Minne80ta.
Motion to dissolve preliminary injunction.
N. P. R. CO. V. B... H. R. CO.
Gilman rt Clough, for plaintiff. Bigelow, Flanclrau rt Clark, for defendants.
NELSON, D.J. It is well settled that the attempt to take permanent possession of land for public use, without the assent of the owner, express or implied, and without payment or tender of damages in advance, would, if consummated, be in the nature of an irreparable injury, to prevent which an injunction will ordinarily be granted. See High on Injunctions, § 391; 30 Wis. 107; 2 Dillon, 376. The answer of defendants does not deny that such attempt was made, and the allegations of the bill in that respect are not fully met, so as to warrant the enforcement of the general rule, that when all the equities of the bill are fully denied by the answer the injunction must fall. The charter of the Northern Pacific Railroad Company (section 7) authorizes the company to enter upon any land necessary for the construction and working of its road, not to exceed 200 feet in width on each side of the line; and in case the owner of the land and the company cannot agree as to the value of the premises taken, provision is made for an appraisal to be initiated by either party. Usually the railroad company only is authorized to proceedings. When the company, under such a charter, takes possession of land for construction before proceedings are commenced to ascertain the compensation to be paid, it is not trespasser, and an injunction even would not be allowed to prevent the construction of its road. Mills on Eminent Domain,§ 90, and authoritiM cited. This rule, however, would not prevail where the right of eminent domain is -to corporations by the legislature of It state whose constitution requires compensation to be first paid or secured before the property is taken. The right of eminent domain is conferred upon the plltintiff by congress under the constitution of the United States. The state of Minnesota assented to the right to· so exercise it. See act of Minnesota legislature of March 2, 1865. Under the constitution of the United, States just compensation, where private property is taken for publie use, is not
in terms required to be made before entry. Authorities are numerous that the party condemning may thus enter even where no right is given by the charter to the owner to tiateproceedings for assessment of damages. But I think the facts in this case, ttside from the law as laid down, show a waiver of payment in advance of the entry and construction of the road by Edward Schriber, the owner, and his heirs. The route of the Northern Pacific Railroad Company was finally located over the locus in quo November 21, 1871. Edward Schriber purchased it in the month of January previous from the government. The railroad was constructed in the summer of 1872. There was no person living upon the premises at the time, and it was uncultivated. The land being vacant at the time of entry by the plaintiff, on the definite location of the route, and the owner residing in the state of Pennsylvania., would not the clause in the company's charter, whichau,thorizes it to enter upon vacant and unoccupied land, justify the entry? But conceding it would not, yet, when the entry was made, and the road.in operation, an acqtliescence fOf the shortest period is sufficient to warrant a belief that the owner intends to waive all claims except, perhaps, for tb,e which could be assessed as well after as before entry. Certainly the earliest notification to the company, to the .averments of the answer, was 101lg after the construction by the plaintiff of. its road over the hind, and, though it is alleged in the answer· that neither Edward Schriber in his life-time, nor his heirs, knew until 1873 that the plaintiff had constructed its roafl over this land, still, up to the time .of the conveyance of their interest in the strip which crosses the Northern Pacific Railroad, in 1880, they only notified the plaintiff that they held it responsible for the trespass and use of the land, and have never commenced any proceedings to assert their rights. The plaintiff has been in possession of thl:l land since November, 1871, and operating its road since 1872. Under such circumstances a license is implied. It is conceded by defendants' counsel that the Barnesville & Moorhead Railroad Company, as owner of a strip purchased
from Schriber's heirs, mnriing across eompla'inant's track, and the land necessary for operating its could not maintain ejectment. If the company is nota trespasser, and cannot be ousted by ejectment, and an injunctionwollId not issue, it has a right of property as well as a license. Its title would be complete and perfect on the payment of compensation when ascertained. The plaintiff insists that the right to compensation is barred under section 7 of its charter, through default of Schriber or his heirs to claim such compensation within six years after the opening of its road, and. authorities are not wanting to sustain this view, (1 Redfield on Railways, 800, and note;) but it is not necessary to decide this now. Concedingthe right to enforce a claim for compensation, the plaintiff still has a property interest which can only be taken: by the defendants deriving title with ·knowledge or the situation, on strict compliance with the law of Minnesota. The lltw does not authorize either pltrty to' initiate proceedings to condemn; it allows only the one desiririg the land. . No award has been made-lio cotnpensation Unless consent or license was' given to' defendants to enter upon the plaintiff's right oTway' a.nd tracx, and construct the crossing, in view of the constitution ltnd laws of Minnesota by virtue of which only can it exercise the right,' damages must first be appraised and paid or secured previoust6 entry. See title, "Eminent Domain;tt Cooley's Constitutional 80 Wis. 105;, 35 Mich. 265,-the latter a railway-cl'ossh:g case. No damages having been appraised, nas permission or license been granted so as to prevent the plaintiff from resisting the occupancy of its land and track for that purpose? \. The amended answer of defendants sets up a license to make a crossing over plaintiff's track, given by it, and alleges that the plaintiff, also, by representations encouraged the building of defendants' road, and gave it to understand that it would assist in effecting the crossing, and interpose 1. 0 objections thereto. The answer is sworn to by R. B. Angus, James J. Hill, and A. B. Stickney; and an affidavit
sworn to by R. B. Angus, which was read on the hearing of the original application for injunction, purports to give in some detail what these representations were, and he says H. E. Sargent, the plaintiff's general manager, knew that the defendants intended to cross plaintiff's line, and made no objection to the manner or the point at which said crossing was to be made, but at his own request was furnished by the defendants' chief engineer with a description of said proposed crossing, and a diagram and model of a frog which would be required at said point, and that said Sargent then agreed and promised to construct said frog at the shops of said plaintiff at Brainerd, in this state. The affidavits of the president and secretary of the company, and of the general manager, denying any consent to the intended crossing, are read in reply, and a copy of a letter written by one of the defendants, Stickney, superintendent of construction of the Barnesville & Moorhead Railroad, dated September 3, 1880, and addressed to H. E. Sargent, general manager of the Northern Pacific Railroad, is also produced, purporting to enclose a tracing of the proposed crossing, with a request that the crossing frogs should be mad,e at the plaintiff's shops and charged to the Barnesville & Moorhead Railroad Company; also a copy of a letter, dated September 9, 1880, addressed to J. J. Hill, general manager of the St. Paul, Minneapolis & Manitoba Railway, and one of the principal officers of the Barnesville & Moorhead Railroad Company, by Sargent, stating that in the matter of the Barnesville & Moorhead line crossing the Northern Pacific near Moorhead, "I am directed to forbid your doing so, or entering the Northern Railroad Company's right of way, which is a strip 200 feet wide on each side of the main track." . ',l'his was certainly a formal revocation of any parol license to enter upon the Northern Pacific track or right of way, con. ceding that consent or license was given, which is very doubtful. Again, the power of the general manager of the Northern Pacific .Railroad to bind the company in a matter of this kind is not clear, but if he could grant such license, as is claimed by defendants, still the law is well settled that a
parollicense can be revoked before acted upon, which is the case here. Bigelow on Estoppel, 227-8; 28 N. Y. 297; 1 Selden, 568. I am satisfied upon consideration of the case, after the full and able argument of counsel on both sides, that the motion to dissolve the injunction must be denied. and it is so ordered.
(Owtnlit Om.urt, 8. D. Nf/W York.
the first class, the originals, m\lst be documents which would be entitled to be ;received in the tribunals of the foreign country as evidence of the criminality of the peI'llon, in respect to the offence charged against him as committed there, if the inquiry as to his criminality in respect of such offence were being had in such foreign tribunals; and such originals mnst be authenticated in such a proper and legal manner as would entitle them to be received as such evidence in such foreign tribunals.