& MICHIGAN SOUTHERN By. Co. v. NEW YORK, CHICAGO & ST. LOUIS By. Co.
(Circuit Oourt, W. D. Pennsylvania. September 5,1881.)
Land already acquired by one railroad corporation, and held for the necessary enjoyment of its essential franchises, cannot be condemned and appropriated in the usual way by another corporation.
A railroad can only acquire and hold an amount of real estate commensurate with its necessities.
Whether or not this limit has been overstepped is a proper subject of judicial investigation, where the controversy before the court arises from an alleged encroachment by another corporation; but every reasonable intendment must be made in favor of the corporation that was the first to acquire title
In Equity. Sur motion for a preliminary injunction. ACHESON, D. J. At the late sitting of the circuit court at Erie, I heard and refused a motion for a preliminary injunction in this case. The importance of the controversy is such, however, that a reargument was allowed, and the case has been heard by the circuit judge and myself upon fuller proofs. Of these proofs, however, I may say that they consist in the main of ex parte affidavits, and in some particulars are less full than is desirable. For example, they afford little information as to the extent of the business done at Harbor Creek station. It is true, we have the opinions of respectable and intelligent witnesses as to the requirements of the plaintiff company at that point, but in matters of fact the affidavits are deficient. In respect to the plaintiff's properties occupied, or proposed to be occupied, by the defendant at Twenty-mile Creek, Sixteen-mile Creek, the Brawley piece, and the gravel pit, we have had no difficulty in reaching a conclusion adverse to the plaintiff's application. As to the wood-yard at Moorhead's, the case is not entirely clear. But as the answer and the affidavit of Mr. McGrath, the defendant's superintendent of construction, (as we understand them,) declare that the defendant does not intend to take up or remove either of the plaintiff's spur tracks at this place, or in any wise interfere with the plaintiff's use thereof, we think that the present proofs do not make out such a case as calls for a preliminary injunction. At the final hearing, with all the evidence regularly taken before us, we can more intelligently and safely determine the rights of the parties.
L. S. & M. S. BY. CO. V. N. Y., C. & ST. L. BY. CO.
With sonie hesitation we announce a similar conclusion in respect to tpe land at Harbor Creek station. I myself entertain serious doubt whether any portion of the plaintiff's land at this point is open to appropriation by the defendant. But, for lack of complete information, my mind has not reached a settled conviction. If the right of -appropriation exists, it certainly ought to be exercised so as to avoid all unnecessary injury to the plaintiff. The defendant's line, as located, divides the plaintiff's property, cutting off a strip of 41 feet in width along Boynton's line. If there is no engineering difficulty or other obstacle in the way, the defendant had better consider whether it ought not to shift its location down to Boynton's line, and thus leave the plaintiff additional available space south of its southerly track. Upon the whole case as now presented, and after a careful consideration thereof, the court is of opinion that the motion for a preliminary injunction should be denied. And it is so ordered. C. J., concurrin.q. The opinion of Judge Acheson announces the decision of the court on the motion for a preliminary injunction in this case. The motion was argued before him alone at Erie, and was then denied; but as he assented to the request of counsel for a reargnment, and desired me to be present at it, I consented to sit with him merely that I might render him, by conference and suggestion, such assistance as I could, leaving still with him the ultimate burden of responsible decision. I concur with him in the denial of the motion, and in the reasons given for it. It is undoubtedly true that the real estate acquired by a railroad corporation by purchase or condemnation, and held for the necessary enjoyment of its essential franchises, cannot be taken from it by another corporation by the usual method of appropriation. But I do not agree with the argument that the extent of such acquisition is conclusively determinable by the directors of the corporation, and that the exercise of their power in this connection is questionable only on the ground of bad faith, as the equivalent of fraud. The power of acquisition is limited by the necessary wants of the corporation, and an exercise of it beyond this limit is not within its protection. I Bee no reason, then, why this limitation of the power of a corporation to acqnire and hold real estate is not as proper a subject of judicial inquiry, where alleged encroachments by another corporation are to be determined, 3S the existence of the power itself. Upon the result of auch an inquiry the decision of this case depends. In finally disposMcKENNAN,
ing of it, every reasonable intendment must be made in favor of the primary rights of the complainant. At the points of the alleged conflict, no actual encroachment upon these rights can be sanctioned or allowed; arid in measuring their extent there must be a liberal consideration of the future as well as the present necessities of the complainant, touchmg the use of the existing tracks, the construe· tion of additional ones, the convenient storage of its freight at all seasons, and the unembarrassed transaction of its freight business. In view of these considerations, the suggestion of Judge Acheson has great force, that it might be most prudent on the part of the l'espondent to modify its locatIon at Moorhead's and Harbor Creek.
(District Court, D. Uolorado.
MINERAL LANDS-DISCOVERy-ITS VALIDITY.
If the outcrop of a vein or body of mineral.bearing rock is found on the surface, the discoverer has the period of 60 days from the date of the discovery to show that the vein or body of rock is in place at a depth of 10 feet or more from the surface. 2. SAME-NOTICIl. A locator, under a notice containing no sppcification or description of the territory claimed by him, has a ciaim only to the very place where the ery stake was set up. . 3. EJECTMENT. To maintain an action of ejectment it must be shown either (1) that a perfect location has been 'made, and that there has been dispossession ;or (2) that the failure to perfect tile location was due to the wrongful act of the defendant. 4. EQUITY. One cannot take advantage of his own wrong.
Thomas Macon, H. G. Thatcher, and J. M. Semple, for plaintiff. Thomas M. Patterson and Julins Thompson, for defendants. HALLETT, D. J., (charging jnry.) 1. The first question for the consideration of the jury is as to the discovery of a lode or vein of silverbearing are by Carroll at the place in controversy. It is incumbent on the plaintiff to show, by preponderance of testimony, that such discovery was made. On this point there is the testimony of Carroll as to what he found there, and some evidence on both sides as to the condition of the ground in the locality. The position of the plaintiff is that the lode cropped out at the place, and was clearly disclosed by the slight work with a pick which Carroll testifies to. The position