Page:Federal Reporter, 1st Series, Volume 4.djvu/313

 N. P. R. CO. V. B. A M. R. 00. �Gilman d Clough, for plaintiff. �Bigelow, Flandrau e Clark, for defendants. �Nelson, D. J. It is well settled that the attempt to take permanent possession of land for public use, without the as- sent of the owner, express or implied, and without payment or tender of damages in advanee, would, if consummated, be in the nature of an irreparable injury, to prevent which an injunction will ordinarily be granted. See High on Injunc- tions, § 391; 30 Wis. 107; 2 Dillon, 376. �The answer of defendants does not deny that such attempt was made, and the allegations of the bill in that respect are not fuUy met, so as to warrant the enforcement of the general rule, that when ail the equities of the bill are fuUy denied by the answer the injunction must fall. �The charter of the Northern Pacific Eailroad Company (section 7) authorizes the company to enter upon any land necessary for the construction and working of its road, not to exceed 200 feet in width on each side of the line; and in case the owner of the land and the company cannot agree as to the value of the premises taken, provision is made for an appraisal to be initiated by eitherparty. Usually the railroad company only is authorized to coinmence proceedings. When the company, under such a charter, takes possession of land for construction before proceedings are commenced to ascer- tain the compensation to be paid, it is not à trespasser, and an injunction even would not be allowed to prevent the con- struction of its road. Mills on Emînent Domain, § 90, and authorities oited. This rule, however, would not prevail where the right of eminent domain is granted to corporations by the legislature of A state whose constitution requires compensation to be first paid or secured before the property is taken. �The right of eminent domain is conferred upon the plaintiff by congress under the constitution of the United States. The state of Minnesota assented to the right to so exercise it. See act of Minnesota legislature of March 2, 1865. �IJnder the constitution of the United States just compen- sation, where private property is taken for public use, is not ����