by a foreign corporation created for the purpose specified in the statute, where it has obtained a permit from the State to do business, such a corporation being thus placed upon the same footing as a corporation created by the legislature.55 A foreign corporation, however, which has not complied with the laws of the State so as to entitle it to the benefits and privileges accorded to such corporations cannot exercise the right of eminent domain for the purpose of erecting a telegraph line.5 And where it is provided by a State statute that no railroad corporation organized under the laws of another State shall be entitled to the benefit of the right of eminent domain until it shall become organized as a corporation under the laws of the former State, such laws being specifically designated in the statute and providing for the manner in which railroad companies may be incorporated, it is essential for a foreign electric railway corporation to organize as provided by the statute, and it does not acquire the right of eminent domain by virtue of compliance with another statutory provision that a corporation organized under the laws of another State may, for the purpose of possessing, controlling, maintaining or operating a railway or part thereof, in that State, become a corporation, citizen and resident thereof by being incorporated by the filing of a copy of its charter or articles of incorporation.

§ 278n. Corporate existence not a subject of inquiry in condemnation proceedings. The corporate existence of a telegraph company having been proved, cannot be inquired into collaterally, as in the case of proceedings by it to condemn a right of way, it being declared that it is a general rule that the legal existence of a de facto corporation can only be questioned by the State in a direct proceeding instituted for that purpose." So where a telegraph company seeks to condemn a part of a railroad right of way for its line and it appears prima facie that it is a corporation in the state in which the proceeding is

55 Gulf, Colorado & S. F. R. Co. v. Southwestern Teleg. & Teleph. Co., 25 Tex. Civ. App. 488, 61 S. W. 406.

56 Duke v. Postal Teleg. Cable Co., 71 S. C. 95, 50 S. E. 675.

57 Evansville & H. T. Co. v. Hen

58

derson Bridge Co., 134 Fed. 973. construing Ky. Const., § 211 and Ky. Stat., 1903, §§ 763, 765, 841. aff'd, 141 Fed: 51, C. C. A.

58 Postal Teleg. Cable Co. v. Oregon S. L. R. Co., 23 Utah, 474, 65 Pac. 735.

brought, the question whether it is in fact a corporation or only a pretended one cannot be raised by the defendant in such proceedings, as the right to raise such question is a prerogative of the State in a proper suit instituted for that purpose by and through its proper officers.59 And the right of a corporation de facto to exercise the right of eminent domain cannot be affected by the fact that the stock subscribed has not been paid for or that the majority of the stock is owned by a corporation of another State which conducts its business and controls its movements. So it is decided in a recent case in Mississippi that where a telegraph company seeks to exercise the right of eminent domain, its right cannot be defeated by showing that the company was but a dummy for another company, that it had no capital stock and was organized for the mere purpose of enabling such other company to do indirectly what it could not directly do, and that its organization and incorporation were consequently unlawful.61

60

§ 279. Condemnation - Conditions prescribed by statute.In those cases where a person is authorized to acquire title to property for a public use by condemnation, the method of procedure and certain conditions are generally prescribed by statute, and in all cases where so prescribed, these requirements must be complied with.62 The object of these provisions is to

59 Postal Teleg. Cable. Co. v. Oregon Short Line R. Co., 114 Fed. 787; Oregon Short Line R. Co. v. Postal Teleg. Cable Co. 111 Fed. 842. 49 C. C. A. 663.

"The

60 Oregon Short Line R. C. v. Postal Teleg. Cable Co., 111 Fed. 843, 49 C. C. A. 663, wherein it is said, per Gilbert, J.: plaintiff corporation, in a suit o condemn land to public use, must show its authority to exercise the right of eminent domain and prove that it has strictly complied with the law. The defendant in such a suit may deny that the plaintiff is duly incorporated, and may cast upon it the burden of having its corporate existence, but, if the lau

ter show that it is a corporation de facto, it is sufficient. The right to further contest its authority to condemn land or to prosecute the objects of its organization belongs only to the State."

61 Alabama & V. Ry. Co. v. Cumberland Teleph. & Teleg. Co. (Miss. 1906), 41 So. 258. The court said in this case that whether the tele

graph company was "a properly organized company under the laws of this State is a question between it and the State, not to be inquired into in this proceeding by the appellant," per Whitfield, J.

62 Winter v. New York & New Jersey Teleph. Co., 51 N. J. L. 83, 2 Am. Elec. Cas. 272, 16 Atl. 188;

guard the public against invasions by corporations, under authority of legislative grants.63 Statutes delegating the right of eminent domain to corporations are in derogation of common right and are not to be extended by implication, but must be strictly construed.64 As is said in a recent case: "Condemnation proceedings are purely statutory, and every condition. prerequisite to the exercise of the right must be strictly pursued." 65 So, where the statute provided that telephone or telegraph poles could only be erected in a street or highway, after obtaining consent of the abutting owner, or in case of his refusal to consent, then by condemnation proceedings, and the owner neither consented, nor were proceedings taken as required, an injunction was granted prohibiting the company from erecting more poles or from continuing in existence those which had already been erected. And where the statute provides that prior to condemnation proceedings a designation of the streets in which poles shall be placed, must be obtained from the common council, a failure to obtain such designation will render any condemnation proceedings invalid.o7

Broome v. New York & New Jersey Teleph. Co., 42 N. J. Eq. 141, 2 Am. Elec. Cas. 259, 7 Atl. 851; New York & New Jersey Teleph. Co. v. East Orange, 42 N. J. Eq. 490, 2 Am. Elec. Cas. 138, 8 Atl. 289. In the Matter of Application of Rochester Elec. Ry. Co., 123 N. Y. 351, 25 N. E. 381; Harrisburg & Mechanicsburg Elec. Ry. Co. v. Harrisburg, Carlisle & Chambersburg Elec. Ry. Co., 15 Penn. Co. Ct. Rep. 389, 5 Am. Elec. Cas. 1; Postal Teleg. Cable Co. v. Norfolk & Western R. Co., 88 Va. 920, 4 Am. Elec. Cas. 225, 14 S. E. 803.

63 In the Matter of Application of Rochester Elec. Ry. Co., 123 N. Y. 351, 25 N. E. 381.

64 New York & N. R. Co. v. Kip, 46 N. Y. 456.

Power to condemn land for milldam. Power conferred by statute upon a person to exercise the pow

66

er of eminent domain for the purpose of building and maintaining a milldam, does not embrace in its purpose a private business corporation organized to furnish light and water for pay to neighboring cities and their inhabitants and a corporation of this character cannot avail itself of the provisions of such an act for that purpose as its works are not a public mill within the meaning of the act. Southwest Missouri Light Co. v. Scheurich, 174 Mo. 235, 73 S. W. 496.

65 Grande Ronde Electrical Co. v. Drake (Oreg. 1905), 78 Pac. 1031, 1033, per Moore, J.

66 Broome v. New York & N. J. Teleph. Co., 42 N. J. Eq. 141, Am. Elec. Cas. 259, 7 Atl. 851.

67 Winter v. New York & N. J. Teleph. Co., 51 N. J. L. 83, 2 Am. Elec. Cas. 272, 16 Atl. 188.

§ 280.

Same subject Post Roads Act.- The Post Roads Act of Congress provides that before any telegraph company can exercise any of the rights conferred by that act, it must file with the Postmaster-General its written acceptance of the restrictions and obligations required by such act. This requirement must be complied with, and is a prerequisite to condemnation proceedings.68 So, where a telegraph company institued proceedings to condemn and appropriate the right of way over a bridge for the purpose of attaching its wires thereto and had not complied with the above-mentioned provision, the court held that compliance with this provision was necessary, and that as it had not complied therewith, all proceedings taken were invalid, and that an injunction would be continued, prohibiting the company from proceeding any further, until it had filed its acceptance as provided in the act.69

- Provisions

§ 281. Post Roads Act Proof of acceptance of. It is incumbent upon a telegraph company to show an acceptance of the provisions of the Post Roads Act before it can claim the benefit of any of the rights conferred thereby. It is held that the proper method of showing this is by a certified copy of acceptance, filed under the seal of the department, though it was suggested in this case, that a letter from the Postmaster-General, stating that such acceptance had been received and filed, with the signature to the letter authenticated, might be sufficient.70

-

§ 281a. Statute giving plaintiff possession where delay prejudicial to public interests - Constitutionality of. In New York it is provided by the Code of Civil Procedure 71 that

68 Chicago & Atchison Bridge Co. v. Pacific Mut. Teleg. Co., 36 Kan. 113, 2 Am. Elec. Cas. 274, 12 Pac. 535; Western Un. Teleg. Co. v. Atlantic & Pac. States Teleg. Co., 5 Nev. 102, Allen's Teleg. Cas. 428.

69 Chicago & Atchison Bridge Co. v. Pacific Mut. Teleg. Co., 36 Kan. 113, 2 Am. Elec. Cas. 274, 12 Pac. 535.

70 Western Un. Teleg. Co. v. At

lantic & Pacific States Tel. Co., 5 Nev. 102, Allen's Teleg. Cas. 428.

The certificate of the postmaster general of the United States showing the acceptance by a telegraph company of the provisions of the Act of Congress of July 24, 1866, is properly admissible in evidence. Postal Teleg.-Cable Co. v. Oregon Short Line R. Co., 23 Utah, 474, 65 Pac. 735, 7 Am. Elec. Cas. 417. 71 § 3380.

where it appears to the satisfaction of the court that the pub lic interests will be prejudiced by delay the plaintiff in condemnation proceedings may be given possession of the property upon depositing with the court the sum stated in the answer as the value of the property. This provision is construed in a late case as not being in violation of the provision of the Constitution,72 forbidding the taking of the property of an individual without compensation.73

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§ 281b. Necessity of a survey — Statute.—A statute providing that: Any railroad, telegraph or telephone company organized under the laws of this State, after having surveyed and located its lines of railroad, telegraph or telephone, shall in all cases where such companies fail to obtain by agreement with the owner of the property through which said lines of railroad, telegraph or telephone may be located the right of way over the same, apply to the Circuit Court of the county." to have the damages for the taking assessed,74 does not make a survey a prerequisite to the right to condemn an easement along the right of way of a railroad company, since the only object of such a statute is to secure a description of the property to be affected and to give notice to the owner of the extent of the right, which the company seeks, and this is accomplished without a survey, since the right of way of the railroad company and the railroad itself are declared to suf ficiently furnish the data for a substantial description and location of the easement which the telegraph or telephone company seeks and which are fairly described in the petition for condemnation." 75

72 N. Y. Const. art. 1, § 6.

73 In re Niagara L. & O. Power Co. (N. Y. App. Div. 1906), 97 N. Y. Supp. 853, the court said: "The property of the defendant is not taken from her without compensation. The essence of the section permitting possession to be acquired is that the owner must be assured the payment of the full value of the land of which he is deprived. It has long been held that payment to the owner person

ally is not an essential prerequisite to the taking of the land by right of eminent domain, providing only compensation is made certain," per Spring, J.

74 Sandels & H. Ark. Dig., § 2770.

75 St. Louis & S. F. R. Co. v. Southwestern Teleph. & Teleg. Co., 121 Fed. 276, 281, 58 C. C. A. 198. The petition in the description was as follows: "A line of poles and wires constituting a telegraph and