
    Case 37 — PROCEEDING TO CONDEMN LAND —
    February 12.
    Portland & Greenwood Turnpike Co. v. Bobb.
    APPEAL PROM PENDLETON CIRCUIT COURT’.
    1. A CORPORATION CREATED UNDER CHAPTER 56 OP THE GENERAL STATUTES may begin business upon the filing of the articles of incorporation in the county clerk’s office; it is not essential to the validity of its acts that the articles shall be filed with the Secretary of State. The failure to comply with this statutory requirement can be taken advantage of only in a direct proceeding to annul the franchise.
    2. Condemnation proceedings. — Under the statute providing the mode of condemning land for railroads and turnpikes, it is not necessary for the corporation to file a petition in forma according to the Code of Practice, but the statement filed by it as the basis of the proceeding must contain not only a particular description of the land sought to be condemned, but an averment that the land is necessary for its use, and that it has been unable to contract with the owner for it. These are jurisdictional facts, and if not stated by the applicant at the outset the proceeding should be dismissed.
    3. Appeals to circuit court. — While the proceeding upon appeal to the circuit court must be tried de novo, the same cause of action must be tried, and there having been a failure to present a cause of action in the county court, none can be created in the circuit court by amendment.
    4. Bar. — A dismissal of the proceeding without a hearing upon the merits presents no bar to another proceeding for the same purpose.
    LESLIE T. APPLEGATE for appellant.
    In a proceeding to condemn land for the use of a turnpike company, a formal petition as prescribed in the Code for civil actions is not necessary. (Gen. Stat., chaps. 18, 56, 110.)
    W. M. & G. A. RARDIN for appellee.
    The proceedings to condemn the land were not authorized by the statute, because there was no petition, no allegation that the land was necessary for the use of the road, and no particular description of the land sought to be appropriated. (Gen. Stat., chap. 56, 110; Civil Code, secs. 39 and 90.)
   JUDGE HOLT

delivered the opinion of the court.

The appellant, the Portland and Greenwood Turnpike Road Company, instituted a proceeding in the Pendleton County Court to condemn a right of way for its road through the land of the appellee, Joseph Bobb, under the act of the Legislature of April 11, 1882, and which, by its tenth section, is made applicable to the condemnation of lands for turnpike road purposes. The first section thereof provides: ‘‘When any railroad company authorized to construct and operate a railroad in this State shall be unable to contract with the owner of any land or material necessary for its use for the purchase thereof, it shall file in the office of the' clerk of the county court a particular description of the land and material sought to be condemned, and. may apply to the county court to appoint commissioners to assess the damages the owner or owners thereof may be entitled to receive, and thereupon the said court shall appoint three impartial housekeepers of the county, who shall be sworn to faithfully and impartially discharge their duties under this act.” General Statutes, chapter 38, b.

The appellant, as the foundation of the proceeding, filed what is styled in the caption, ‘ ‘ Description of land to be condemned,” and which merely gives such description, and asks the appointment of commissioners to assess the damages. It is questionable, perhaps, whether the description-given comes up to the “particular description” required by the act; but we will so regard it.'

There was no statement in any form filed stating that the company had been unable to contract with the appellee for the right of way, or that it was necessary for such purpose. The commissioners reported, and the appellee, having been summoned, appeared and presented a general and special demurrer. Both were overruled. The ground of the latter was that the appellant had attempted to incorporate itself by articles of incorporation filed for record in the office of the clerk of the county court under chapter 56 of the General Statutes, and had failed to file a copy of the articles with the Secretary of State within three months after the filing in the clerk’s office as directed by the statute, and, therefore, had no legal existence as a corporation.

This same question was made by the exceptions filed by the appellee to the commissioners’ report, and it is unnecessary to notice it further than to refer to the case of Walton, &c., v. Riley, &c., 85 Ky. Rep., 413, in which it was held that a corporation thus created may begin business upon the filing of the articles in the county court clerk’s office, and that it is not essential to the validity of its acts that the articles of incorporation shall be filed with the Secretary of State. In other words, that this failure to comply with this statutory requirement can be taken advantage of only in a direct proceeding to annul the franchise.

The exceptions filed by the appellee made no issue as to the need of the land for the right of way, or whether the company had made any effort to obtain it by contract. A jury assessed the damages, and thereupon the county court rendered a judgment of condemnation. The appellee appealed to the circuit court, and there, upon his motion, the action was dismissed. This was done without any hearing upon the merits, and can not, therefore, operate as a bar to another proceeding for the same purpose.

The judgment does not give the reason for the dismissal. Counsel agree, however, in argument, that it was because of a failure at the institution of the proceeding, to file a petition setting forth the facts necessary to authorize the condemnation. It was not necessary, however, to file a petition in forma, according to the Code of Practice. It is a proceeding under a statute to enforce a statutory right, and the statute prescribes how it shall be done.

While, however, the statute says the company “shall file in the office of the clerk of the county court a particular description of the land and material sought to be condemned,” and then apply for the appointment of commissioners, yet the same section provides that 'it can only do so when the land is necessary for its use, and it has been unable to contract with the owner for it. If the land be not necessary for its use it can not, under the statute, condemn it; nor can it do so unless it has first, in good faith, made an effort to obtain it by contract. They are conditions precedent to the- exercise of the right of condemnation. The power conferred upon the company is an extraordinary one. The sovereign power vests it for certain purposes, and with a view to a public service, with the power of eminent domain; but it does so upon certain conditions, and with these it should strictly comply in view of the extraordinary power given to it over the property of the citizen. It can institute proceedings for its condemnation only when it is necessary for its use, and after an effort to obtain it from the owner by contract. The Legislature intended to restrict the exercise of the power conferred to cases of necessity, and to afford the owner an opportunity to contract his land or the use of it away, thus avoiding the expense and trouble of a court proceeding. If the conditions do not exist upon which the company has been authorized to condemn the land, then, clearly, it can not be done. It must show their existence. If an issue be made as to the necessity for the condemnation, or whether an effort has been made, prior to the institution of the proceeding, to obtain the land by purchase, and both do not appear affirmatively, there can be no condemnation. This being so, a proper and reasonable construe-lion of the statute in question requires that the company should, at the outset, and as showing its right to institute such a proceeding, not only incorporate in its statement, filed as the basis of the proceeding, a particular description of the land sought to be condemned, but an averment that it is necessary for its use, and that it has been unable to contract with the owner for it. It has no right to appear in court §r bring the owner there unless this be so. They are jurisdictional facts, and should, therefore, be stated by the applicant at the outset. They lie at the foundation of the proceeding. Their existence should at least be prima facie shown to authorize the court to proceed. Moreover, since a failure to show them upon an investigation would result in a dismissal, common sense dictates that the party should, at the start, aver their existence, because, if he can not do so, the owner should not be forced into court. The statute not only admits of this, to our minds, a reasonable construction, but the spirit, if not the letter, of the section in question requires it.

It is true the proceeding upon the appeal, must be tried de novo. The statute so declares. But the same cause of action must be tried; and there having been a failure to present one in the county court where the original jurisdiction is vested, it could not be created in the circuit court upon appeal by an amendment. There was nothing to amend.

Judgment affirmed.  