dissenting:
In this case, I have not been able to agree with a majority of the court in their conclusions that the decree in this case should be affirmed.
It appears from the evidence that the appellant in August, 1873, became an organized corporation by electing directors, and soon thereafter caused their road through the canyon to be laid out, surveyed, and located, which survey was adopted by the board of directors as their location of said road, and said company commenced constructing their road on such location, and had made considerable progress therein, before the Douglas County Eoad Company was organized. After the appellant was organized and had located the line of their road, the respondent also organized and located a road over substantially the same route, for it is evident from the testimony that there is but one route through the canyon for a road. And the first question in the case is, Had the appellant acquired by this location such an interest in the route and that part of the county road before constructed through the canyon that it could legally maintain the right of way over said county road, and hold it against the alleged rights of the respondent acquired through its contract with the county court of Douglas county ?
The statute (Misc. Laws, 529, sec. 23) provides generally, “that a corporation organized to construct a road, shall have the right to appropriate the lands over which it may be located,” and section 26 provides “that such corporation may appropriate such parts of any county road as shall be necessary and convenient in the construction of such road.”
In the first instance, where the lands of private persons are taken, the statute points out how compensation shall be made to owners of lands so taken, for damages sustained by them in locating the road over their lands. In the case where a county road is appropriated, the county court can agree with the corporation on the terms on which said county road may be used by the corporation. But if the *111county court and the corporation can not agree, then the corporation may appropriate so much of said county road as may be necessary and convenient in the location and construction of said corporate road.
Section 28 provides “ that when such public highway (or county road) is taken by agreement with the county court, such corporation may place such gates thereon and charge such tolls thereat as the county court shall consent to in such agreement, and none other.”
So it appears from these provisions of the statute that the corporation has the right on the location of its line of road to appropriate a county road where necessary and convenient, whether the county court assent to it or not, but have no right to charge tolls on such county road unless the same be allowed by an agreement with the county court; and the object of this agreement with the county court would seem to be to obtain the right to collect tolls on the roads so far appropriated; for the county court has no power to prevent the corporation from using such county road, and their using the same for the purposes of travel would be no public injury, and the rights of the public are protected by the inhibition of the corporation from collecting tolls on such portions of the county road as are taken and used on the line of the corporate road, unless the same are allowed to be collected by an agreement with the county court.
I think, therefore, that the appellant, having first established its line of road through the canyon, acquired thereby the prior right to appropriate this county road, and that this right was property of which they could not be deprived by the action of the county court. That is, that the appellant had the same right to locate its road on this county road as it had to locate it over the lands of private persons, and that the only object in making an agreement with the county court was to obtain the privilege of putting a gate on such county road and collecting tolls.
These are rival corporations, each seeking to secure the right to construct a road over substantially the same route, and I think that the one that was first in time in organizing *112and locating the route, thereby appropriated it to the exclusion of one less expeditious. It has been held in Maryland, in the case of the Chesepeake Canal Co. v. Ohio R. R. Co., 4 Gill & J. 1, that the right to select and acquire land for the authorized purposes of a corporation is property. It is an incorporeal hereditament, not a legal title to the land itself, nor a mere, capacity or faculty to acquire land, such as every individual possesses, but a right or privilege to acquire that right in the land necessary to the enjoyment of the franchise. And no corporation, after the previous grant of such right to another, can legally acquire any such right of way over or title to the land over which the franchise extends, as will hinder the corporation first acquiring the right from the enjoyment of its franchise; and the same doctrine is announced in the case of West Bridge Co. v. Dix, 16 Curtis, 802; in Massachusetts in the Charleston Branch R. R. Co. v. County of Middlesex, 7 Met. 78; and in the case of Boston Bridge Petitioners v. County of Middlesex, 10 Pick. 269; Abb. Dig. Law of Corp. 626, sec. 239. I think, therefore, that the Canyonville and Galesville Road Co. are first in time and first in right in securing their franchise.
It is claimed that the appellant lost its right to appropriate this county road by not making application for an agreement with the county court of Douglas county before respondent made an agreement with such court giving to respondent the right to use said county road.
This maybe answered by an illustration: Suppose that after the appellant had organized and proceeded to locate the line of its road, the same crossed the land of a private person; and the respondent, having subsequently organized, had proceeded to such private person and by agreement with him got the right of way, while the appellant was diligently pursuing the business of its location, but before it had reached that part of the line over the land of such private person; such purchase would not defeat the right of appellant to proceed and appropriate the land for the use of his former acquired right of way over it, and I think the same principle applies to the appropriation of a *113county road. It was first necessary for the corporation to locate the line of its road before it could know how much and what part of said county road it would be necessary and convenient to appropriate. I do not think that the decision of this court in a former case, affirming the order of the circuit court to enter nunc pro tunc an order made by the county court of Douglas county on its records, in any way settles or determines the right of appellant under its corporate privileges. These rights were not litigated in that case.