This is an appeal from an order of injunction made by the judge at chambers. The order, in substance, prohibited the appellant from entering upon, or in any manner interfering with, the free and unobstructed use and enjoyment, by the respondent, of the tracts of land, right of way, or station-grounds described in its complaint, and from using or occupying the same for the construction of its road-bed, and from committing any waste or nuisances thereon, until the further order of the court. This order was made upon the complaint and answer, and affidavits presented in support of the answer. The facts, as shown by these, were substantially as follows: That both *417the respondent and appellant are organized under the general act of the general assembly of the territory of Montana in relation to railroad corporations, — • the former being-authorized to construct “ a branch extending from a point at or near Helena, in a southwesterly direction, along Ten-Mile creek, so called, to Eed mountain, at or near Eimini; ” the latter, with authority to construct “ a railroad from said city of Helena to and near said town of Eimini; ” that the respondent had taken the necessaiy steps “ whereby it became and is entitled to one hundred feet on each side of the central line of its said railroad where the same is located and constructed through and over the public domain, and fifty feet on each side of said line where it is located and constructed on other property, as its right of way; ” that, in connection with such right of way, it had procured, and was entitled to the possession, use and enjoyment of, certain ground adjacent thereto, for station buildings, depots, machine-shops, side tracks, turnouts and water stations, which, with said right of way, were obtained prior to the alleged commission, by the appellant, of the acts complained of; that the appellant has entered upon, and is now constructing its road-bed at certain points upon the respondent’s said right of way and depot grounds, and at one point has located a crossing of the respondent’s track.
The answer avers that it is necessary so to construct appellant’s road, and that both roads are constructed through canyons, passes or defiles of Ten-Mile creek; that no damage will be done to respondent’s road, by the construction of the appellant’s road, except by said necessary crossing; and that the respondent refuses to make any equitable terms, whereby both roads may each occupy said canyons, or portions thereof.
The principal question for our determination is as to what authority shall determine the terms and conditions upon which one railroad corporation may occupy the track, road-bed or right of way of another located through a canyon, pass or defile. It is contended by the appellant ' *418that this power exists in the corporation so occupying another’s track, road-bed or right of way, while it is claimed by the respondent that such jurisdiction belongs to the district court of the judicial district wherein the canyon, pass or defile is situate. Our conclusion as to this question must be deduced from a correct construction of our statutes in relation to the subject of eminent domain.
The decision of this court has already been made, sustaining the action of the judge in making the above preliminary order of injunction, but, no opinion having been then rendered, our purpose now is to present our reasons for such determination. The legislation of this territory, in relation to-the right, power and method of taking property for the use of railroads, is wholly comprised in title XY on the subject of eminent domain. E. S. div. 1, p. 147, and article 3, ch. 15, div. 5, E. S. p. 464, entitled “Eailroad Corporations,” commonly known as the “ General Eailroad Law.” The former of these expressly refers to the taking of property for the uses of railroads, and confers the power of exercising the right of eminent domain, for this as well as all other public uses therein named, upon the district court. Section 585 of this title provides as follows: “ All proceedings under this title must be brought in the district court for the county in which the property is situated. They must be commenced by filing a complaint, and issuing a summons thereon. Section 586 designates, among other things which the complaint must contain, the following: “. . . Third, a statement of the right of the plaintiff.” This evidently refers to section 583 of the same title, which provides that, “ before property can be taken, it must appear (i) that the use to which it is to be applied is a use authorized by law; (2) that the taking is necessary to such use; (3) if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.”
Therefore, unless taken away by conflicting legislation, either directly or by implication, the district court of the *419county where the property is situate has original jurisdiction in proceedings for the condemnation of property for the use of railroads, or for the other purposes mentioned in the foregoing act. In so far, however, as this jurisdiction is concerned, the general railroad law conflicts. Section 302 of this law provides that railroad corporations “ shall be authorized to locate, construct, maintain and operate their roads between any points they may select, within the counties named in the certificate as termini of such road.” By section 306 the right of way is granted through the public lands to the extent of one hundred feet in width on each side of the center of the railroad, except as against the United States. Section 307 provides “ that, for the purpose of securing private lands and premises along the line of its road, necessary and proper for the construction thereof, such corporation be, and is hereby, empowered to enter upon, purchase, take and hold any lands and premises that may be necessary for the construction and workings of said road, not exceeding in width one hundred feet on each side of its center line.” This section also provides thé metkód by which such property may be appropriated. Section 308 provides how, in case of necessity, any road, street, alley or public way or ground of any kind, or any part thereof, owned or in charge of municipal corporations, public officers, or public authorities (evidently referring to streets and public grounds in towns and cities, and to highways), may be occupied and appropriated by such companies, and expressly makes their directors the judges of the necessity for such appropriation. The above sections, 302 and 307 by implication, and section 308 directly, make the railroad corporations judges of the necessity for the appropriation; that is, they are, by implication, constituted the judges of the necessity for the appropriation of private lands, and directly of the necessity for the appropriation of streets, alleys, public grounds and highways, when there is an inability to agree with the “ corporation or public officer, or public authorities owning or having charge thereof.”
*420But, except as to these instances, the jurisdiction of the district court relating to the condemnation of property for the use of railroads being principally, if not alone, that of one railroad corporatiori seeking to appropriate the right of Way and other property occupied by and already appropriated by another, remains as provided for by title XY on the subject of eminent domain, unless taken away by section 309 of the general railroad law in the case for whicli it specially provides, viz., a railroad’s track or right of way in a canyon, pass or defile. This section-is as follows: “ That any such corporation whose right of- way, or whose track upon such right of way, extends through any canyon, pass or .defile shall not exclude any other such corporation from a .passage through the same, upon equitable terms; and, in ease of disagreement, upon application of either of the parties, with notice to the other, the same shall be adjusted by a court of competent jurisdiction; and if the passage of any such railroad through any canyon, pass or defile causes the disuse or change of location of any public wagon-road that may traverse the same, damages shall be awarded therefor as provided by section 307 of this article; and, if it shall become necessary for any other railroad company passing through the territory to' cross or pass any other railroad track or defile already constructed or surveyed, the same may be so done without compensation therefor, except the actual damage done by so doing; and when two or more companies desire to pass through the same canyon, pass or defile, neither shall exclude the other from passing through the same, and neither shall have any compensation therefor, except the actual damage done by so doing; and should it be necessary that the said companies should use the same track or bed in passing through such canyon, pass or defile, the-same may be done without any compensation therefor from one to the other, except the actual damage done by so doing.”
This section provides for four kinds of cases; but the matter under consideration is referable to the first of these, viz., *421where one road has established its right of way or constructed its track upon such right of way, through, a canyon, pass or defile, and another road attempts to pass through upon such right of way. It is a case where a railroad attempts to take for its own use property already appropriated for another public use. By the law of eminent domain (title XY, supra), in order to do this, it would be necessary to make it appear to the court that it was for a more necessary public use. To what extent does the above provision of the general railroad law change this method of proceeding provided by title XY ? If so, how are they to be reconciled, and what construction is to be placed upon them? It will be observed that, with the exception of a public wTagon-road passing through a canyon, pass or defile, the method of proceeding to condemn which, is changed from that provided by section 308 to that by section 30*7, being the same as in the case of private lands, this section relates to a different kind of property than that named in any other portion of the article, viz., property already appropriated by a railroad. But while it provides for a method to appropriate a public wagon-road, the only tribunal mentioned in connection with railroad property is “a court of competent jurisdiction,” proceeding in the usual manner in a “ case of disagreement, upon application of either of the parties with notice to the other;” and an adjustment upon equitable terms. Would not the making by the law, as we have seen, of the railroad the judge of the necessity of the taking of the other property mentioned therein, and the mention in the same section of the method of proceeding to condemn a public wagon-road, and the failure to make the railroad occupying another’s property the judge of the necessity for so doing, and the express mention of the court of competent jurisdiction proceeding regularly to adjust a dispute, plainly indicate that it was the intention of the legislature to constitute the district court of the county wherein the canyon, pass or defile is situate the tribunal to determine the terms and conditions *422upon, which, one railroad shall occupy the property of another therein? This would seem to be the plain import, looking only to the language of this section, which contains all that this article provides relating to the property of a railroad in a canyon, pass or defile. Why this silence in relation to the railroad being the judge of the necessity in such a case, unless it was intended or deemed to have been provided for by this section relegating the whole matter, where there was a disagreement as to the terms and conditions of passage, to a court of competent jurisdiction ? tJnless this is meant, we do not understand why the legislature should make such a provision. The nature of the case requires that this should all be done before the passage by the second road through the canyon, pass or defile, and doubtless this was the intention of the legislature when it made this provision. What could the legislature mean by providing for the adjustment of the terms of passage, if the road seeking to go upon another’s right of way in a canyon could locate its track or road-bed anywhere it pleased thereon ? This would be to allow the road attempting to occupy the other’s right of way to be judge of its own equitable terms; for we think that the terms in this connection do not refer to damages or compensation alone, but also to the manner of locating and constructing the road with relation to the first right of way or track.
Some of these have been well suggested by the judge in his decision: “ In what places, if any, is the canyon wide enough for the second track? Might the second track be built on the opposite side of the canyon? Should it be built on or over the first track? These questions, and many others, involving science, skill and engineering, would have to bo solved before the court could adjudicate upon the question.”
To say that a road seeking to occupy another’s right of way or track should be the judge of the equitable terms of such occupancy, and of the construction of its road, would place it in the power of the former to injure, or even de*423stroy and render useless, the road of the latter, without redress. It would confer the power of confiscation without a remedy. The object of the law was doubtless to prevent a single railroad in this mountain region, where there. are so few convenient or even accessible or available passages for railroads, from obtaining the control of any of these to the exclusion of other roads. It is intended to meet a case where there is not room for more than one road to establish a right of way or track through a canyon, pass or defile. These words, as used in the law, signify, as stated by the learned judge in his decision below, a Avay or passage between steep hills or mountains,, or precipitous bluffs of earth or rock, where there is only room for one right of way, or for the construction of but one track. This provision of the statute was made to promote the general interest. It would manifestly be detrimental to the interests of the territory that a single railroad should monopolize any one canyon, pass or defile, through the otherwise almost impassable barriers of these mountains. It seems plain that the construction of the law contended for by the appellant would defeat its object. It would result in the very condition of things against which the legislature seeks to provide. By title XY, one railroad could only appropriate the property of another in all cases where it was made to appear to the court that it was for a more necessary public use. But it is plain that when property is used for one railroad it cannot, unless in exceptional instances, be said to be taken for a more necessary public use, when appropriated by another railroad. Therefore, when the legislature contemplated the appropriation of the property of a railroad in a canyon by another, being a case of necessity, it provided that the court could do so, not by requiring that it must appear to be for a more necessary use, but upon equitable terms.
If the construction contended for by the appellant is cor-, rect, the intention of the legislature to make the second railroad the judge of the terms and conditions should appear in plain and express terms, or by necessary implication. Mills, *424in his work on Eminent Domain, referring to numerous authorities (page 46), says: “ To take property already appropriated to another public use, the act of the legislature must show the intent so to do by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent.” “A general authority to lay out a railroad does not authorize a location over land already devoted to another railroad or public use.” So far as the general railroad law is concerned, no provision is made for the taking by one railroad of the property of another, except in a canyon, pass or defile. There is nothing in this law which indicates an intention to authorize one railroad to take the property of another', except a general authority to lay out a railroad. This, alone, is not sufficient. If such authority would be probable to appear anywhere, it would be in the section containing the provision under consideration; but there is nothing in this which indicates such plain and clear intention, but, on the other hand, rather an intention to confer this jurisdiction upon the district court. “One public corporation cannot take the lands or franchises of another public corporation in actual use by it, unless expressly authorized to do so by the legislature; but the lands of such a corporation not in actual use may be taken by another corporation authorized to take lands for its use in mvikim, whenever the lands of an individual may be so taken, subject to the qualification that there is a necessity therefor.” “ The question as to whether such necessity exists or not is one of fact for the jury.”
The legislature recognized, in the case of the passage of railroads through a canyon, pass or defile, a case of necessity, viz., that it was necessary for the public interest that they should pass through without excluding each other, and in such a case as the one at bar, that the second may use •the property of the first; but provided that, before this could be done, it must be upon the just and equitable terms and conditions adjusted by the district court.
Railway Co. v. Alling, 99 U. S. 463, is a case directly in *425point. In this case the supreme court of the United States, Mr. Justice Harlan delivering the opinion, after deciding that the-Denver Company {i. <?., the railway company) had the first right of way through the Grand canyon of the Arkansas, subject to the act of congress of 1875, relating to railroads passing through a canyon, pass or defile, and which in its main features resembles the provision of our statute under consideration, says: “Where the Grand canyon is broad enough to enable both companies to proceed without interference with each other in the construction of their respective roads, they should be allowed to do so. But in the narrow portions of the defile, where this course is impracticable, the court, by proper orders, should recognize the prior right of the Denver & Eio Grande liailway Company to construct its road. Further, if in any portion of the Grand canyon it is impracticable or impossible to lay down more than one road-bed or track, the court, while recognizing the prior right of the Denver Company to construct and operate that track for its own business, should by proper orders, and upon such terms as may be just and equitable, establish and secure the right of the Canyon City Company, conferred by the act of March 3,1875, to use the same road-bed and track, after completion, in common with the Denver Company.”
In interpreting the same act of congress, Judge Hallett, of the circuit court of the United States, in the case of Denver & R. G. R'y Co. v. Denver, S. P. & P. R. Co. 17 Fed. Rep. 867, which is also a case in point, says: “ It is not said in the act of congress that the entire right of way which may be appropriated by one company is subject to be used by another, but only that the first appropriation shall not prevent any other company from the use of the same canyon, pass or defile; and it must be clear from the language used that it is only in cases of necessity that one company can go upon the right of way of another for the purpose of building its road.” “ Now, whenever a controversy arises between two companies in respect to the exist*426ence of such, a necessity, the fact that the canyon, pass or defile is such that it is impracticable for the second company to pass through it without going upon the territory of the road first located, will enter into the controversy, and it must be settled by the courts.” “ It is perfectly plain that the first company has the right to object to the intrusion upon its right of way by the second company until that question is settled. If it were true that this act would subject the way to the use of any other company, in such a manner that the latter might go in against the objection of the first, it would also be true that the second company could demand of the'first the use of its track absolutely, without adjudication of the facts in any court; but it seems to me as clear as anything can be, that the first company to locate its road through any such place as is described in this act of congress may, in the first instance, and without showing any cause whatever, object to admitting any other company into its way until the facts are shown making it necessary for the second company to come on the right of way to build its road. . . . Questions that arise in a controversy of this kind, or that may arise, are as difficult of determination, and as substantial in their character, as any which can be brought into a court of justice. I think they are questions which are subject to adjudication in the ordinary sense. They are questions to be settled by a final decree of court. ■ The matter is to be settled upon evidence, and not upon a preliminary motion. .. . - It would be manifestly unjust to the defendant itself to countenance the building of the road now, when it may be that the court will afterwards require. the road to be removed, and built somewhere else. What would be said if we should now, and here, give the defendant permission to go on and build its road as it shall choose, and in six months from this time, on final hearing, declare all of it to be wrong,— a mistake from the first,— and that it would be the duty of the defendant to take up its track, and put it somewhere else? I do not think any court can *427go on in that way. This is a matter for final decision and determination, and, as'such, these are questions which can only be considered on final hearing. . . . What was said by counsel about the hardships that rest upon the defendant may be entirely correct,— I suppose it is; but I think it is not a matter for which the court can give relief by preliminary order. The plaintiff in this action has secured this right of way by going upon it, and building its road, under the act of congress, and I think it has a right to defend that right of way against all who may seek to convert it to their own use, until the conditions of things mentioned in this act of congress is shown to exist, and no court has power to direct any other road to go upon such way until the facts are ascertained. They are to be ascertained • according to the usual methods of proceeding in courts of equity.”
These principles appear to us to be so applicable, so correct and just that it would almost seem as if the provision of our statute under consideration was drawn to conform to the above act of congress, and the foregoing interpretation of it by these decisions. These decisions demonstrate conclusively that, under the provision of our statute for such cases, the respondent has the right of way through the canyons; that it may object to any encroachment upon' its right of way or track until it appears to the court that there is a necessity therefor; that until it so appears, any encroachment by the appellant upon such track or right of way would be a trespass; and that when such necessity does appear, and there is a failure to agree upon the terms of occupancy, the matters in dispute shall be adjusted by the district court of the county where the canyon, pass or defile is situate, upon equitable terms.
It seems to us plain, for the foregoing reasons, that the former decision of this court sustaining the action of the judge at chambers in issuing the foregoing order, of injunction was correct.
Judgment affirmed.
Bach, J., concurs.