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company filed its location "of additional land on said summit of Mt. Washington for side tracks, wood sheds, repair shops, engine, car, and freight houses, turntables, and depot purposes, and all other purposes that are incidental thereto, or may be necessary to carry into effect the object for which the Mt. Washington Railway Company was established." This location covered about five and a half acres of land, and the location, with the plan and survey, was filed in the office of the secretary of state. Proceedings were had under the authority of Gen. Laws N. H. c. 160, § 29. Plaintiffs, being dissatisfied with the additional location made by the railway company, applied to the railroad commissioners for a change, alleging that the railway company "have already sufficient land for all necessary uses, and all that is needed for the management of their railway, but they desire to take the said land for other purposes." It was upon this issue that the hearing before the railroad commissioners was had. After a full hearing, the commissioners made their decision, reducing the boundaries of an additional location as made by the railway company, established new boundaries, found as a fact that the location as fixed by them was necessary to the railway company for side tracks and the other purposes indicated by the statute, and made their return to the office of the secretary of state. Upon the return of the additional location, the plaintiffs were bound to apply to the court to annul the judgment, or to acquiesce in the judgment. Instead of attacking the judgment, they acquiesced in and assented to it. They do not charge the railroad commissioners with fraud or corruption, but admit the contrary. On the day the return was filed by the commissioners, the railway company applied to them to appraise the damages to the plaintiffs for the taking of the land. Hearing was had, at which all parties were present. The damages were awarded, and the plaintiffs took their appeal, not from the judgment determining the boundaries of the location, but from the award of damages for the land taken.

The necessity or propriety of appropriating private property for the use of the public or of the government is not a judicial question. The power of determining such necessity or propriety resides exclusively in the legislature. There is no restraint upon the legislative power except that requiring compensation to be made. The legislature may conclusively prescribe the methods by which the power shall be exercised, may appoint proper tribunals to determine (1) the necessity for the taking for any particular public use; (2) the amount or quantity to be taken; (3) the compensation to the owner for the property so taken. The legislature may provide an appeal from the . judgment of said tribunals upon any one or more, or all or none, of the three questions; it may provide that the judgment of said tribunals shall be final and conclusive upon either or all of the three questions. The statute (Gen. Laws, c. 160, § 29) provided that railroad corporations may take and hold such land as may be necessary for side tracks, etc., and that, if the owner is dissatisfied with such location, either party may apply to the railroad commissioners, who may change the same as justice may require. From the decision of the railroad commissioners determining the necessity for the taking and the amount of land to be taken, and changing the location, as justice may require, no appeal has been provided by the legislature. Upon this question, the judgment of the railroad commissioners is final and conclusive; that judgment has the same validity and is as binding upon all the parties interested as any judgment of this court in a case where it has final jurisdiction of the subject-matter and the parties. The legislature might have provided for an appeal by either or both the parties interested, but it has not done so. If the judgment of the railroad commissioners in determining the amount of land to be taken, and the boundaries thereof, is unsatisfactory to the railway company they have no remedy; they are bound by the judgment, and cannot take any land outside of the boundaries prescribed by the commissioners. If the judgment of the railroad commissioners is unsatisfactory to the landowner, he has no remedy; he must submit to that judgment, but may recover full compensation for all land taken. It will be observed that the rights of the landowner are fully protected. He cannot appeal from the determination of the commissioners as to the amount of his land necessary to be taken; but upon the question of proper compensation for the land taken he may appeal, and have that compensation de

termined by a jury. The judgment is final. Railroad Co. v. Speer, 56 Pa. St. 325; Struthers v. Railroad Co., 87 Pa. St. 282; Farnham v. Canal Co., 61 Pa. St. 265; Chambers v. St. Louis, 29 Mo. 543; Land v. Coffman, 50 Mo. 243; Hill v. Railroad Co., 32 Vt. 68; Swan v. Williams, 2 Mich. 437; Chicago, R. I. & P. R. Co. v. Town of Lake, 71 Ill. 333; People v. Smith, 21 N. Y. 595. I therefore submit that both parties are concluded by the judgment of the commissioners of September 11, 1883, which fixed the limits of said additional location, and determined the fact that the land within said limits was necessary for the legitimate use of the railway company. Plaintiffs, pursuing their statutory remedy, applied to the railroad commissioners to change the location, claiming that the railway company had already sufficient land for all necessary uses, and that they desired to take the land for other purposes. These issues were tried, and finally adjudicated. The plaintiffs had their day in court. That adjudication was final; it cannot be reopened here.

V. The maintenance of the Summit House by the railway company for station purposes, and as a place of entertainment for its patrons, and for furnishing them food, lodging, and shelter while at the summit, is within the lawful powers of the railway company, and its further maintenance cannot be properly enjoined.

The Court: That is a question for the attorney general of New Hampshire, not for this court.

PUTNAM, Circuit Judge. This is a very important case, and involves a large mass of facts; but the principles which govern it are to my mind simple, and, therefore, I think I had better dispose of it now. I am satisfied that, if I should delay the decision for the purpose of investigating, pending the investigation, which would necessarily be delayed somewhat, I should lose from my mind more than I should acquire.

Something has been said touching the title of the complainants, but it does not seem to be seriously contested. So far as the record goes, the complainants have been in possession since 1862, and are now in possession, subject to the interests of the Mt. Washington Railway Company and the other respondents, and no one disputes their title, so far as I can discover. For all the purposes of this case, and for the carrying out of the contract here under consideration, the title is certainly sufficient; and if not, yet, so far as this case is concerned, the respondents are estopped by the contract from disputing it.

The objections of complainants to the last location made by the railway corporation are threefold: (1) That the purposes for which this railway was constructed are not such as to make a public use within the meaning of the constitution; (2) that the location, as modified by the railroad commissioners, should be set aside, in whole or in part, for reasons which I will refer to later on; (3) that the location is defective on account of a confusion or error touching the point from which the first call in its description starts.

As to the first objection, the amended bill prays the court to set aside the location on the ground that the railway corporation has no power under the constitution to take lands by eminent domain. If I should grant that request, the decree which would be rendered would necessarily pull up the contract by the roots, as its whole scheme is based on the reverse idea. There is an inconsistency in asking relief on the contract, and at the same time deny

ing that this corporation can avail itself of the right of eminent domain. So long as the complainants stand upon the contract, they are estopped, at any rate in any litigation in which they set it up, from obtaining relief on the other ground. I need not go further, although I have very positive views in harmony with the general position of the respondents, if I found it necessary to express

them.

With reference to the second objection, there is no doubt in my mind that a court of equity may set aside the action of a tribunal of this character, either in whole or in part, if it is fraudulent in its nature or essence, or was fraudulently obtained. It may even go further, and, for the same reasons, set aside the judgment of a judicial tribunal. This is a fundamental principle of equity law. But it is not enough for that purpose that the parties who brought about the adjudication had a fraudulent or illegal intent. It must be shown that the tribunal itself proceeded fraudulently or in excess of its powers, or that it committed a gross mistake, or that the adjudication was obtained by fraudulent methods practiced upon or before the tribunal, as by false testimony. It is a wellsettled principle that a just result, otherwise lawful, is not ordinarily affected by the fact that the parties who secured it entertained in their own breasts an illegal, fraudulent, or unauthorized intent or purpose. The law ordinarily judges of what was done by what was done, and not by the purposes of those who secured the result. Courts proceed very grudgingly in setting aside adjudications of other tribunals, and within very narrow lines, and only in a clear case. The reason is evident. If the proceedings of the first tribunal may be attacked for loose or general reasons, the proceedings of the second tribunal may be attacked for the same reasons, and there would be no end to litigation. The proofs in this case fail to meet these requirements. But the proposition is also made that the railroad commissioners have gone beyond their powers, and laid out more land than was required for any legitimate railroad uses. I have no doubt that, aside from the usual questions of fraud, excess of power, or gross mistake, and from the other usual grounds of interference by courts of equity with the action of judicial or quasi judicial tribunals, nothing but the final decision of the ultimate judicial tribunal can absolutely prevent a landowner from raising the question whether or not property taken was needed for public uses. But upon that question every reason. able intendment is made in favor of the party exercising the right of eminent domain. The various constitutions provide that this taking for public uses shall be compensated for. But the requirement that property taken for public uses shall be compensated for gives the owner his substantial protection, without going further and establishing nice rules as to the quantity to be taken. The nature of the use for which land is to be taken necessarily appears on the face of the proceeding; and, if it is not a public one, the condemnation cannot be sustained, no matter what the legislature may have declared. The constitution of New Hampshire makes no express limitation touching the amount of property which shall

be taken for public uses, all other conditions being complied with; and, as I have already said, the courts on this point have been very liberal towards the party exercising the right of eminent domain, and have given him the benefit of every reasonable intendment. For example, the statute right of way for railroads in this state is 99 feet in width. Now, if a railway corporation in any particular case took that amount of land, and the question was raised whether or not it was more than it actually needed, the objection would receive from the courts no consideration except of the most grudging character. That is, the declaration of the legislature that a railroad corporation may take a right of way of 99 feet in width has been prac tically construed as giving the right to take that entire width, so far as the corporation desire it, without any question whether or not it could at any particular point construct its road, and maintain it with less. The general proposition is strengthened in this case by the fact that an adjudication-whether a strictly judicial one or not it is not necessary for me to say-has been made by the railroad commissioners, who have viewed the premises, and who, under all the circumstances, are more capable of determining what is required by the railway corporation, not only for the pres ent, but in the reasonable future, than a court of law. A judge, sitting as I am sitting here, ought not to review the action of a tribunal of that character on such a matter, except the evidence is clear that the commissioners made a gross mistake. The case here, moreover, shows distinctly that the corporation did need land outside of its first location. Its engine house, turntable, and storage tracks were and are necessarily outside of it; and evidently, if the present hotel was removed, the railway corporation could not be accommodated within its original limits and yet build such a station as it would require for its ordinary passenger service. There was therefore, on the face of this case, an evident necessity for the corporation to take advantage of the statutory provisions under which it proceeded to make this additional location. And there are circumstances enough in this case, giving the evidence for the complainants full force, and wholly disregarding the evidence for the respondents, to show that the railroad commissioners made no such gross mistake as to authorize the court to annul their action in whole or in part. The complainants recite in the bill that the railroad commissioners proceeded on the hypothesis that the railway corporation was entitled to take land for hotel purposes. I do not find anything in the proceedings of the commissioners which justifies that suggestion. In the face of the fact that they report that the land was taken for the purposes the statutes authorize it to be taken for, and without evidence that they in any way expressed themselves otherwise, I do not perceive that this proposition can be sustained. To go back to a principle already stated, the fact that the railway corporation desired a part of this land for hotel purposes, if it did so desire it, or that it desired for special reasons to exclude the complainants, if it did so desire, will not invalidate the action of the commissioners unless it is also shown v.61f.no.1-3

that the desire received form and practical effect in the action of the commissioners themselves; because, as I have already stated, the fact that a party who has the legal right to proceed in a certain direction, and reach a certain result, also desired to reach that result for reasons not within the scope of the law, does not ordinarily affect it, if it is otherwise valid. For the reasons stated, I cannot annul the action of the commissioners, in whole or in part, on the ground of the second objection.

Coming to the proposition that the report of the commissioners is erroneous with reference to the beginning of the first course, all I need say about it is that, if the location made by them was uncertain in law,-not merely in fact, but in law,-it could not stand; but that it is uncertain in fact, that individuals may differ in regard to its construction, and that it must go to the courts to ultimately settle its boundaries, do not make it uncertain in law, as the law says that what can be made certain is certain. The report cannot be set aside on that ground. There is some question, no doubt, as to the proper construction of the report, but that I think I will be able to dispose of so far as this case is concerned without difficulty. I do not propose to leave this matter in such form that the proceedings in this court shall go forward on a theory favorable to the complainants, and yet the damages be assessed by the state courts on another theory unfavorable to them.

I see nothing in the new location which prevents carrying out the essence of the contract, because the contract expressly provided that it should be executed on the old location; and the fact that the new location does not any more interfere with its practical execution than did the existence of the original right of way. The parties have submitted many propositions based on the apparent theory that we are to determine the ultimate rights of railway corporations, and of abutters and landowners, with reference to land taken for railroad uses.

There may be cases where contracts are of such a nature, that the court sees that their enforcement according to their terms would prevent a railway corporation from performing its duty to the public; and then the court might hesitate, and, perhaps, refuse to proceed, although ordinarily, as has been stated during the hearing, equity courts do not take the place of the attorney general, for the purpose of seeing to it that corporations perform their duties to the public. We may suppose an instance where a railway corporation has, upon its admitted right of way, erected structures which the landowner claims it has no right to erect and maintain; and, a controversy arising on that point, the parties in interest might well adjust and compromise the question, and agree, under such circumstances, that the corporation shall for a certain length of time retain the use of the buildings, and that afterwards the landowner shall take possession of them, leaving them where they are for another certain length of time, and then removing them on certain conditions stipulated. An agree ment of that nature should be enforced by the courts, unless they see that it necessarily interferes with the performance by the cor

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