Atlanta, K. & N. Ry. Co. v. Southern Ry. Co.

Citations

• 131 F. 657
• 66 C.C.A. 601
• 1904 U.S. App. LEXIS 4304

Syllabus

<p>1. Removal op Causes — Waiver op Right — Filing Answer and Motion to Dissolve Injunct:on.</p> <p>The filing by a defendant in a state court of an answer and a motion, supported by affidavits, for the dissolution of a preliminary injunction or restraining order which had been granted ex parte, and the hearing of such motion on ex parte affidavits by the judge in chambers, where he had no power to determine any question on the merits, do not preclude the defendant from removing the cause where his petition therefor was presented before the time when, by the laws of the state or the rules of the court, he was required to plead.</p> <p>2. Eminent Domain — Condemnation Proceedings — Eppect op Unauthorized Entry.</p> <p>Shannon’s Code Tenn. §§ 1844^-1807, providing for the condemnation of right of way by railroad companies, do not authorize an entry on the land without consent of the owner until his compensation has been ascertained and either paid or secured, unless, perhaps, for the purpose of making a survey; and a company can acquire no rights by going upon the land and commencing construction work without the owner’s consent after it has filed a petition for condemnation.</p> <p>3. Same — Priority op Right — Unrecorded Conveyance.</p> <p>A statutory proceeding for the condemnation of right of way for railroad purposes is but a substitute for its acquisition by contract, and the filing of a petition for condemnation by a railroad company gives it no right as against another company, which previously obtained a deed from the owner for the same purpose, although such deed was not recorded, and especially where, as by the Tennessee statute, it is expressly provided that such proceedings shall affect only the interests of the parties thereto and unborn remaindermen, and the grantee company is not a party.</p> <p>4. Same — Preliminary Survey.</p> <p>There being no statute in Tennessee requiring a survey before the institution of proceedings to condemn right of way for r