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to reach the exact point on the curved westerly rail of the New Jersey Junction Railroad, as that railroad is now constructed, where it may be determined that the branch No. 7 departs upon that rail from the main line, the exact point being uncertain. The courses of the survey lend credence to this explanation, but the description of the terminal point is at decided variance with it. It is impossible to reconcile all parts of the description. It is suggested that the court should consider the description of the terminal point elliptical, and supply words to make it conform to the theory of its meaning advanced by the plaintiff. We perceive no warrant for so doing in view of the fact that the terminal point intended is not identified. It is deemed that the great value of the property and the conflict of important railroad interests at this point render it necessary that the disputed terminus should be so described that it will be capable of definite and unmistakable ascertainment. As it is now designated it is so indefinite and uncertain that it is impossible to say that the land sought to be condemned is all within the plaintiff's located route. We think that this uncertainty vitiates the proceedings reviewed.
The defendants present two other objections to the proceedings considered, which demand attention because they question the plaintiff's legal existence. The first is that the general railroad law does not authorize Authority to the construction of a railroad less than a mile in length, and the second is that a connection between ing road. two railroads incorporated under that law cannot be accomplished by an independent corporation. It is argued in support of the first of these propositions that the rating of the deposit to be made with the state treasurer at the time of incorporation, and the charges that the company may make for transportation, and the minimum of the company's capital stock, by the mile, conclusively exhibit the legislative intent that the railroads contemplated by the law shall be more than a mile in length. · The statute expressly provides for two classes of railroads,—those more than 10 miles long and those less than 10 miles in length; but it makes no minimum limit of length in the latter class. The design of the law is to subserve the public good. Consequently every railroad incorporated under it is expressly required to transport such passengers and property as shall be properly offered for transportation at its depots. Revision, p. 932, § 26. The test of the road intended is its public use and benefit, and not its extent or length. _Long Branch Commissioners v. West End R. Co., 29 N. J, Eq. 566; National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755, 766. The law makers apparently considered the utility of a legislative limitation of the length of a railroad to be so questionable, in view of the fact that capital will not seek unremunerative investment and duties, that they did not impose it. This interpretation of the statute is now too well established in our courts to be disturbed. The public convenience and benefit being subserved, which is exhibited by the investment of capital, the railroad may be less than a mile in length. The second objection--that a connection between two railroads cannot be accomplished by an independent corporation-is claimed to be supported by the provisions of the twenty-third section of the general railroad law, which it is said contemplates an extension of or an addition to an existing road, to form a desired connection, and by the supplement of 1880 (P. L. 94) to the “ Act concerning railroads,” (Supp. Revision, p. 823, $ 7.) The latter act appears to be directed to specially chartered railroads. But at best both the laws referred to merely confer power to make railroad connections. I fail to find anything in the stat. ute which prohibits the connection of two railroads by an independently incorporated company. In Commissioners v. West End R. Co., above cited, it was said that the twentythird section of the general railroad law expressly declares that a corporation whose road shall be contructed under this law shall have the right to connect its roads with any rail. roads within this state or any other state, and that the sole purpose of the acquisition of corporate functions by the defendants in that case was to build a connecting road between two existing roads, and that such purpose is specially legalized. We do not think that this objection is well taken. Other objections go merely to the regularity of the plaintiff's proceedings, and, as we think that those proceedings are vitiated by the uncertainty whether the land which the plaintiff seeks to condemn is within its located route, it is not necessary to consider them. Our conclusions upon the points stated lead to an affirmance of the judgment of the supreme court.
construct short connect
PER CURIAM.—The judges voting to reverse the judgment of the supreme court in the above entitled cause concur in the opinion delivered by the chancellor, except so far as it holds the petition to be defective. Deeming the petition sufficient, we think the judgment below should be reversed.
For affirmance: McGill, Ch., BEASLEY, C.J., and Dixon, VAN SYCKEL, J.J.
For reversal: Brown, CLEMENT, COLE, SMITH, and WHIT. AKER, J.J.
Condemnation by One Railroad of Crossing Over Another.-See United N. J.R. & C. Co. v. Nat. Docks, etc. R. Co., (N. J.), 44 Am. & Eng. R. Cas. 226: Richmond & D. R. Co. v. Durham & N. R. Co., (N. Car.), 40 Id. 488; note 39 Am. & Eng. R. Cas. 16.
Power of Railroad Company to Condemn Land of Another Company Ac. quired by Purchase and not by Eminent Domain.-In the case of In re Providence & W.R. Co., (Rhode Island, March 14, 1891), 21 Atl. Rep. 965, it was held that a railroad company cannot, under a general power to condemn land for a right of way, take land occupied by the main line and necessary side tracks of another railroad company, although such land sought to be taken was acquired by the latter company by purchase, and not by the exercise of the right of eminent domain. 'The court said: “As I understand their contention, it is that, so long as the defendant railroad companies obtained the land now proposed to be taken and condemned by the petitioner, by purchase, -Mr. Benton says they were so obtained,-instead of by the exercise of the right of eminent domain, it is subject to the exercise of that power on the part of the petitioner without any express authority therefor in the charter, to the same extent as the land of any private individual. But I fail to see, upon principle, why the lands held by a railroad company for the necessary and ordinary uses of the road, which have been obtained by it by purchase, under the express power given in its charter for this purpose, should not be equally exempt from the exercise of the power of eminent domain on the part of another railroad, seeking to obtain said lands for similar purposes, unless expressly, or by necessary implication, authorized to take and condemn said lands, (which is not the case here), as though the same had been obtained by condemnation. Such lands are just as essential for the road, they are used by it precisely the same, they are impressed with a public trust, and the effect of taking them away would be precisely the same, as though they had been obtained under the greater power given therefor. It is true that no cases have been produced in which this doctrine has been directly held, although in Boston & M. R. Co.v. Lowell & L. R. Co., 124 Mass. 368, it appears by the opinion that part of the land which the defendant was restrained from condemning, because already appropriated to a public use, was obtained by purchase. But the particular question now under consideration seems not to have been directly raised in that case or in any other that I have been able to find. The case In re Boston & A. R. Co., 53 N. Y. 574, is certainly very nearly in point. In that case the petitioner proposed to take and condemn land held by the village of Greenbush as and for a public park, which land was not obtained by said village under the power of eminent domain, but by gift; but the court held that in the absence of express authority, this land, being already in public use under the sanction of the law, could not thus be taken. See, also, Anderson v. Rochester, L. & N. F. R. Co., 9 How. Pr. (N. Y.), 553. The case of In re New York, L. & W. R. Co., 99 N. Y. 12, 23 Am. & Eng. R. Cas. 43, although not precisely parallel, yet I think proceeds upon a similar theory. In that case the land proposed to be taken by the petitioner in invitum was held by the defendant by purchase, said defendant having no power under its charter to obtain it by condemnation. Defendant was a steamboat company, duly incorporated and engaged in the business of carrying by water passengers and freight on the Great Lakes, and using the property in question as a dock or wharf for the landing and delivery of freight. The question before the court was whether the use of corporate property for the public convenience and for purposes of a quasi public character was sufficient to protect it from the grasp, under the right of eminent domain, of another corporation whose property was held for similar public use. The court held that it was not, and mainly on the ground that the land held by the defendant was not
47 A. & E. R. Cas.—7
impressed with a public trust. “It might use the lands here in question,' said the court, wholly for the purpose of building and equipping the vessels of its line, and then apply them solely to private uses.
The test appears to be, not what it does, or may choose to do, but what, under the law, it must do, and whether a public trust is impressed upon it. It does not so hold its property impressed with a trust for the public use, unless its charter puts that character upon it so that it cannot be shaken off. Applying this test to the case at bar, it seems to me that the lands of the defendant railroad companies must, under the circumstances, be exempt.”
TWELFTH STREET MARKET Co.
PHILADELPHIA & READING TERMINAL R. Co.
(Pennsylvania Supreme Court, May 25, 1891.) Eminent Domain--Power to Condemn Property of Market Company. The rule that one corporation cannot take by the right of eminent domain the property of another held for public use without express legislative authority, does not exempt the property of a market company, which is in every respect a private corporation, from the exercise of the right of emis nent domain by a railroad company.
APPEAL from Court of Common Pleas, Philadelphia County. The opinion of the court below, THAYER, J., is as follows:
“ The right of eminent domain is the right of a sovereign state to take private property for public use, and in order to
promote the general welfare. It is called .emiNature and nent domain' because it is superior to all private importance
rights, and is an exercise of the sovereign authority domain.
which of necessity resides in all governments for
the common benefit and welfare of their citizens. It was assumed by the framers of the constitution to be a right necessarily inherent in every sovereign state. Accordingly they did not put into the constitution any express grant of such power to the legislature, while they took care to prohibit, by express words, any limitation to its exercise which should exempt corporations from its application to their property in common with that of individual persons. Article 16, $ 3, declares: · The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as the property of individuals.' If this power which resides in the state is a great power, it cannot be denied that it is also a necessary power. If it may seem in one aspect of it to be a despotic power, it cannot be denied that
it is at the same time a beneficent power, and absolutely es-
position. erty is a public use; and that, in accordance with the established law upon this subject, one corporation cannot take, by the right of eminent domain, the property and fran. chise of another corporation held for public use, without an express authority from the legislature so to do, as an authority necessarily to be implied from the grant to them of their power, and arising out of the absolute necessity inherent in the grant, and not created by themselves. So far as relates to that portion of the objection made by the plaintiffs to the
* * provided,