
    Sherman County Irrigation, Water Power & Improvement Company, appellant, v. Edna J. Drake et al., appellees.
    Filed July 22, 1902.
    No. 12,053.
    Commissioner’s opinion, Department No. 3.
    Public Service Corporation: Property: Legal Process: Non-User. In the absence of statutory enactment, the property of a gMasi-public or public service corporation, necessary for carrying’ out the objects of its creation, like the rights of way • of railroad, turnpike and canal companies, and fixtures thereto, can not be seized and sold upon legal process in ordinary actions, although the company is insolvent, and has been guilty of non-user and abandonment.
    Appeal from the district court for Shermau county. Heard below before Sullivan, J.
    
      Reversed.
    
    
      Richard J. Nightingale, for appellant.
    
      H. M. Mathew, contra.
    
   Ames, C.

It appears from the record that the plaintiff is a quasi-public corporation duly organized to construct a work of internal improvement, namely, a canal for irrigating and power purposes, beginning at a point near Arcadia, in Yalley county, and ending at a point near Rockville, in Sherman county, in this state, the whole distance being between twenty and twenty-five miles, and that in the years 1891 and 1895 it procured its right of way for the purposes of its charter over the greater portion of this distance, and constructed its work from Arcadia to a length of about sixteen miles, being aided in so doing both by private contributions and public subsidies. Beyond the farthest point of completion, but upon the plaintiff’s right of way, the work of excavation Avas partly done, and a flume constructed for the purpose of carrying the Avater over a depression in the surface of the land. ^ This is the Avhole extent of construction. The completed portion of the ditch Avas used, more or less, for irrigating purposes during the years 1896 to 1897, both inclusive, but in the fall of 1896 the works suffered a severe injury from a heavy fall of rain, and owing to this fact and other embarrassments, the company became so crippled financially as to be unable either to extend the construction of the ditch, or to repair the damages inflicted upon the completed portion of the same, and since the year 1897 it has become largely filled with sand, and overgrown with weeds and otherwise deteriorated, so that it has not been used for or adapted to the purposes of the company. The company, however, through its officers, disclaims any intention of abandonment, and professes to be in the possession of resources Avhich will enable it to complete the construction of its works, effect the necessary repairs, and resume the use of its franchises and property. In November, 1896, the defendant Drake recovered a judgment at law against the company, and levied an execution thereon upon the flume and the part of the right of way upon which it is situated. This is an action to perpetually restrain the enforcement of the execution levy. The court upon a trial found that the company was insolvent, and that it had abandoned the intention of completing its canal over that part of its right of way which had been levied upon, and rendered a judgment of dismissal and for costs. From this judgment the plaintiff appealed. In our opinion the case is ruled by the decision of this court in Overton Bridge Co. v. Means, 38 Nebr., 857, in which it was held, in accordance with the general voice of judicial authorities, that in the absence of statutory enactment, the property of ¿«usi-public corporations, like the plaintiff, can not be seized and sold upon process in actions at law. If the first of the facts found by tbe court constitutes an exception, it would, in effect, abolish the rule, because the issuance of the execution and its return nulla bona, as was done in this instance, would establish the fact of insolvency, and justify the levy. Abandonment or non-user of corporate property and franchises is, under some circumstances, a ground of forfeiture, which may be enforced at the suit of the state, but it is not, of itself, a forfeiture or surrender, nor does it deprive the public of its interests, which, in a proper case, the state may preserve by resuming the franchise, and bestowing it upon some one capable and disposed to effectuate the object for which it was created. Whether property not adapted to or necessary for the accomplishment of the purposes for which the corporation was created is liable to seizure and sale upon legal process, is a question which does not arise, and need not be decided in this case.

It is recommended that the judgment of the district court be reversed, and an injunction granted as prayed.

Duffie and Albert, CC., concur.

By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and an injunction granted as prayed.

Reversed.  