State ex rel. Naylor v. Dodge City, Montezuma & Trinidad Railway Co.

The opinion of the court was delivered by AllEN, J.:

This action was instituted by the county attorney of Gray county, in the name of the state, to restrain the defendant from tearing up and removing the track, ties and iron from that part of the roadbed of the Dodge City, Montezuma & Trinidad railroad in Gray county. A restraining order was granted by the district judge, to continue in force until December 22, 1893, which time was fixed for hearing the application for a temporary injunction. A hearing was had at that time, and the temporary injunction was denied. The plaintiff brings the case here for review.

While the title to a completed railroad is vested in the corporation, it is only private property in a qualified sense. Railroads, like all other public thoroughfares, are public in-strumentalities. The power to construct and maintain railroads is granted to corporations for a public purpose. The right to exercise the very high attributes of sovereignty, the power of eminent domain and of taxation, to further the construction of railways, could not be granted to aid a purely private enterprise. The railway corporation takes its franchises subject to the burden of a duty to the public to carry out the purposes of the charter. The road, when constructed, becomes a public instrumentality, and the roadbed, superstructure and other permanent property of the corporation are devoted to the public use. From this use neither the corporation itself, nor any person, company or corporation deriving its title by purchase, either at voluntary or judicial sale, can divert it without the assent of the state. It matters *379 not whether the enterprise as an investment be profitable or unprofitable, the property may not be destroyed without the sanction of that authority which brought it into existence. Without, legislative sanction, railroads could not be constructed. When once constructed, they may only be destroyed with the sanction of the state. The legislature unquestionably has the power to authorize the abandonment of railroads when they cease to be of public utility. It may be, also, that in an •action prosecuted by the attorney general, on behalf of the state, to forfeit the charter and wind up the affairs of a railroad corporation, for any proper cause, the court might make all necessary orders for the disposition of the property of the company; but in this case the state appeared, by the county attorney of the county in which the road was located, protesting against the removal of the superstructure of the road. The court erred in refusing the injunction asked.

The general propositions stated above are abundantly supported by authority: E. & N. E. Rld. Co. v. Casey, 26 Pa. 287 ; The State v. S. C. & T. Rld. Co., 7 Neb. 357 ; People v. L. & N. Rld. Co., 10 N. E. Rep. (Ill.) 657; Railroad Comm’rs v. P. & O. C. Rld. Co., 63 Me. 269 ; Railway Co. v. Mining Co., 68 Ill. 489 ; Gates v. Railroad Co., 53 Conn. 333 ; Thomas v. Railroad Co., 101 U. S. 71 ; Railroad Co. v. Winans, 17 How. 30 ; Pierce v. Emery, 32 N. H. 484; People v. N. Y. C. & H. R. Rld. Co., 28 Hun, 543 .

These views are also in accordance with prior decisions of this court: Comm’rs of Leavenworth Co. v. Miller, 7 Kas. 479 ; St. J. & D. C. Rld. Co. v. Ryan, 11 id. 603 ; The State, ex rel., v. Bridge Co., 22 id. 438; City of Potwin Place v. Topeka Rly. Co., 51 id. 609.

We have decided this case on what appears in the record, without reference to facts developed on the hearing of other cases relating to the same railroad company, which may deprive the plaintiff of any substantial benefit from the decision in this case. The order of the district court, refusing the temporary injunction, is reversed.

All the Justices concurring.