Page:Federal Reporter, 1st Series, Volume 3.djvu/710

 s. V. E. CO. V. ST. P., M. 4 M. BT. 00. 708 �pation of the premises, cannot be disturbed in such posses- Bion except through proper legal proceedings ; and if the defendant bas a better legal title to the same, an action of ejectment -will lie to enforce its right, I cannot, on tbis ap- plication, try the question of title, but must hold that the open and acknowledged possession of the plaintiff is sufflcient to Bustain an injunction to prevent interference therewith, forcibly or without its consent. The plaintiff, if it desires, may amend its bill, setting forth its title to the particular tract of land over which its road passes at the point where said defendant seeks to cross. �I have no doubt of the right of the Bameaville Eaîlroad Company to cross the plaintiff 's road, on payment of compen- sation therefor, -when the amount is fixed by commissioners selected under the railway legislation of tbis state ; and the charter of the Northern Pacific Eailroad Company, obtained from the general govemment, does not exempt its right of way from the operation of the laws of the state of Minnesota, and forbid a railroad company organized under the general laws of the state to exercise the right of eminent domain, The important question in this case is whether tbis defend- ant can enter upon the private property of tbis company and disturb its possession and make the crossing before damages are actually assessed and paid, or secured. The laws of the state certainly do not autborize it, and the constitution in terms forbids it. "Private property shall not be taken for public use without just compensation therefor, first paid or secured," is the constitutional provision. Chapter 80, Laws of 1879, and chapter 34, sections 13 to 23, Young's Minne- sota Statutes, confer the right of eminent domain upon rail- way corporations, and speeify the necessary proceedings where a corporation exercises it, and it is only after the com- pensation for the property to be taken is assessed and paid, or an appeal taken from the award of commissioners, that the company can proeeed with the construction of its rail- road, and enter upon and take possession of the premises Bought to be condemned, and on appeal only by executing a bond conditioned to pay the award. ����