OPINION ON REHEARING.
No. 12,814.
2. -- Attempted Condemnation Held Void. An attempted condemnation by one railway corporation, under the general stat utes of eminent domain of this state, for right-of-way purposes, of an entire tract of land belonging to another railway corporation, a portion of which is already in actual and necessary use by the owner for railway purposes, and for all of which a single award of damages is made, is void as an entirety. 3. - Condemnation Enjoined — Jurisdiction in Equity. In a suit in equity brought by a railway corporation to enjoin the unauthorized condemnation of its property by another railway corporation for right-of-way purposes, under the general statutes of eminent domain, the court has no authority to sever from the whole a portion of a tract condemned as an entirety and allow the proceedings to stand as to the remainder while invalidating them as to such portion; nor can the condemning corporation cure the unwarranted appropriation of an entire tract by disclaiming the right to use or occupy a portion of it.The opinion of the court was delivered by
Burch, J.:When this case was first presented, it was decided upon the theory that the real controversy related to the refusal of the trial court to enjoin the taking by one railway corporation, under the statutes of eminent domain, of property belonging to another railway corporation, whose actual occupancy by the owner was questioned, whose use for its corporate purposes was denied, and whose necessity for such purposes was assailed. The majority of the court concluded that a dispute of this character does not fall within the jurisdiction of the board of railroad commissioners; that no tribunal has been provided by law to pass upon the propriety of a taking by one railroad company of- the land of another in advance of condemnation under the statute; that the only remedy of an aggrieved landowner in such a case is whatever a court of equity can furnish ; and that the judgment of such a court upomissues of fact of the character described is conclusive to the same extent as in other cases.
*582In consequence of a rehearing granted under rule 22 of this court, it has become plain that more is involved in the case than has been determined.
The district court granted a portion of the relief prayed for by the plaintiff upon the allegations of its petition, and enjoined the Orient company from interfering with, or obstructing, that part of the lead-track of the Santa Fe company opposite to, and directly south of, its roundhouse, and also that part of the side-track opposite to, and directly south of, its coal-trestle. This judgment itself implies and discloses an attempt at an appropriation by the condemnation proceedings of the property protected by the injunction, and shows that such property was so conditioned as to warrant the interposition of the court.
There is abundant evidence in the record that the report of the condemnation commissioners included land actually occupied by at least one of the Santa Fe company’s railway side-tracks. Counsel for the respective parties do not agree as to the quantity of land affected, nor as to the full extent of the interference, but in referring to the track south of the coal-trestle counsel for the Orient company make the following statement in their brief on the rehearing : “The boundary of the Orient right of way would lap over a very few feet upon the extreme west end of that ground-track.” There is, therefore, no dispute as to the fact of appropriation. There is likewise abundant evidence in the record that this track was properly used in connection •with the coal-trestle, which was erected in good faith to meet the necessities of the business of the Santa Fe company as a common carrier, and that the whole improvement cost some $6300. The evidence of the Santa Fe company shows that estimates for this work were submitted in January, and that authority *583for its prosecution was given in April. Counsel for the Orient company concede that it was commenced on May 6 ; that the condemnation commissioners did not begin their work until May 27; and that they did not file their report until June 14. Until the commissioners’ report was filed it could not be known whose land had been taken, or in what quantity, or in what locality, and, at least, until the commissioners approached the land of the Santa Fe company in the actual work of condemnation that company was fairly entitled, without question as to its motive, to make any use of its property which the legitimate advancement of its business interests demanded. Besides this, the record shows that upon the production of this evidence counsel for the Orient company disclaimed any right to obstruct or interfere with the property protected by the injunction. Hence, all further controversy as to the character of the use to which the land taken was put is also eliminated. The judgment involving the determination of these facts is not appealed.
The record, therefore, fairly presents a case of an attempted condemnation by one railroad company, under the general statutes of eminent domain, of land owned by another railroad company already in actual and necessary use for railroad purposes.
Under the authority of the text quoted in the former opinion (1 Lew. Em. Dom., 2d ed., §267), and 'the adjudicated cases upon which that text is based, this cannot be done except by express statutory warrant, or by necessary implication from the language, of the statutes, when an effort to apply the law is made. The latest decisions of the courts support this doctrine. (Western Union Tel. Co. v. Pennsylvania R. Co., 120 Fed. [C. C.] 362, decided in January, 1903, *584and affirmed in Western Union Telegraph Co. v. Pennsylvania R. Co., 123 Fed. [C. C. A.] 33, decided May, 1903; Indianapolis & V. R. Co. v. Indianapolis & M. R. Transit Co., [Ind. App.] 67 N. E. 1013, decided in June, 1903.) The opinions in these cases collate numerous authorities and without doubt announce the law.
The statutes cited in the original opinion are barren of any such express power, and the disclaimer negatives any excuse to resort to the doctrine of implication. Therefore, the attempted condemnation of so much, at least, of the ground of the Santa Fe company as was occupied by the coal track referred to was void.
So much of the report of the condemnation commissioners as relates to the lands of the Santa Fe company is as follows :
“The Atchison, Topeka & Santa Fe Railway Company is the owner of the following-described tracts or lots of land in Lyon county, Kansas, to wit: Lots numbered four (4), five (5) and six (6) of block numbered one (1) ; lots numbered three (3) and four (4) of block numbered two (2) ; and lot numbered three (3 ) of block numbered six (6), all in Ruggles’s addition to Emporia, a subdivision of the north half of the south half of the northeast quarter of section 16, township 19 south, range 11 east; also a small triangular piece of ground in the southwest corner of the lands of said company in the southwest quarter of northwest quarter of section 16, township 19 south, range 11 east, as shown on plat annexed; over, through and upon which the said route or right of way of the said The Kansas City, Mexico & Orient Railway Company is surveyed and located, as shown on the map or plat hereto attached and made a part of this report, and marked ‘Exhibit A/ which map or plat correctly shows the exact location of the said route or right of way as accurately surveyed and located oyer, through and upon the said tract or lot of *585land, and the quantity of land necessary to be taken from said tract or lot of land for said purpose.
“And we hereby appraise the value of the land taken for said route, right of way, and other purposes, including any and all crops and improvements upon the land actually taken or appropriated from said tract or lot of land, at four hundred dollars ($400).
“And we hereby assess the damages to said tract or lot of land by reason of the appropriation of said route or right of way, etc., over, across and upon the same, at fifty dollars, our total appraisement of said value and assessment of said damages being four hundred and fifty dollars ($450).”
From this it will be seen that as to the property of the Santa Fe company the condemnation proceeding was an entirety. A gross allowance of $400 for land taken was made, and a gross allowance of $50 damages to land not taken was made.
Under the statutes the condemning company, has the absolute and uncontrolled direction of the condemnation proceeding. The commissioners lay off the route for such distance as the company desires, of such width as the company desires, within the limits of 100 feet, and upon such location as the company desires. If the company desires the land of another railroad company, the coveted quantity is surveyed and appraised, and a report of the proceeding made and filed. Upon making a deposit of damages and completing the county records, the company has the right to occupy the land and by building the road may acquire its perpetual use. Against this proceeding the statute has given the landowner no remedy except by appeal, and by strict phraseology has limited the question to be tried upon appeal to the matter of damages alone. The statute reads :
“Before any board of county commissioners shall proceed to lay off any railroad route as herein pro*586vided, notice of the time when the same shall be commenced shall be given, by publication thirty days before the time fixed, in some newspaper published in such county, or if none be published therein, then in one of general circulation in the county wherein such railway is to be laid off; and an appeal shall be had from the determination of the board of county commissioners as to the value of the land, crops, buildings and other improvements on said land, and for all other damages sustained by such person or persons by reason of such right of way so appropriated, in the same manner as appeals are granted from the judgment of a justice of the peace to the district court; and said appeal and all subsequent proceedings shall only affect the amount of compensation to be allowed, but shall not delay the prosecution of the work on said railroad, upon said company paying or depositing the amount so assessed by said commissioners with the county treasurer of the county within which the said lands are situated ; and upon the payment or deposit, as aforesaid, of the amount so assessed by said commissioners, and upon said company executing a bond, with sufficient security, to be approved by the county clerk, to pay all damages and costs which said company may be adjudged to pay by said district court, said company may, notwithstanding said appeal, take possession of and use the said land and construct its road over the same.” (Gen. Stat. 1901, § 1364.)
If, therefore, the landowner either accepts the condemnnation money or takes an appeal, the perpetual use of the land vests in the condemning company when compensation is made. And if an appeal be taken no jurisdiction can vest in the appellate court to try the rightfulness of the appropriation of a part of .any specific tract, or to eliminate from the condemnation proceeding a part of a tract wrongfully taken, or upon such elimination to apportion gross awards of damages for land taken and for injury to land not taken. To *587assume such jurisdiction in the face of the statute would be usurpation on the part of any court in which an appeal has been lodged.
“Now, if the legislature violates no constitutional provision in making the award of the commissioners final, if the landowner has no constitutional right to an appeal from such an award, it would seem to follow necessarily that that which the legislature may withhold altogether it may grant upon conditions. The appeal being a matter of favor, and not a matter of right, the power that grants it may prescribe the terms upon which it shall be taken. How can it be held that a landowner who has no right to an appeal can, when one is tendered to,him upon conditions, accept the tender and repudiate the conditions ? Can he, of his own volition, enlarge the scope of a grant, which is a mere matter of legislative favor? Many words cannot make this clearer; the landowner’s constitutional guaranty terminates with the award of the commissioners. The appeal is a favor, and carries with it all the conditions the legislature has seen fit to impose. An examination of the statute leaves no doubt as to the extent of these conditions ; it provides that the appeal shall only be as to the amount of damages, and that it shall not delay the prosecution of the work.” (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453, 464.)
Under these circumstances the only .adequate remedy available to the landowner is an injunction from a court of equity. (2 Lew. Em/Dom., 2d ed., § 643, and cases cited.) It is elementary law that statutes conferring the power of eminent domain are to be strictly construed, and that in the exercise of the right such proceedings only are available as the legislature provides. (1 Lew. Em. Dom., 2d ed., §§253, 254, and cases cited.) Therefore, a court of equity, in a suit brought by a landowner to enjoin the unauthorized taking of his property under the statutes of emi*588nent domain, has no power to enlarge or supplement such statutes by any improvisation of its own whereby a part of a tract condemned as an entirety may be severed from the whole, and the condemnation proceeding invalidated as to such part while allowed to stand undisturbed as to the remainder. Nor can the condemning party cure an unauthorized proceeding relating to an entire tract by disclaiming the right to use or occupy a portion of it. Such action would result in depriving the landowner who had been compelled to forego an appeal in order to protect his rights of any opportunity to contest the amount of damages awarded. Condemnation proceedings for any quantity of land appraised as an entirety, and for which a single award of damages is made, must be treated as an entirety, and must stand or fall as a whole.
From this it follows that the condemnation proceeding assailed in this action is void as to all property described in that part of the commissioners’ report quoted above, and that the injunction prayed for in the petition should have been granted.
In the syllabus of the first opinion filed it is stated that one railway corporation may, under the general statutes of eminent domain, condemn for its right of way real estate belonging to another railway corporation, not in actual and necessary use for railway purposes. This must be true, or it might be possible for one railway company, by a skilful extension of its grounds, to exclude another railway company from . access to a city or other given territory. In its application, however, ’the rule is subject to some obvious restrictions. Every square foot of extensive yards or commodious grounds need not be improved or occupied to be absorbed in railway uses; an opportunity for necessary expansion and a reasonable anticipa*589tion of future needs should be indulged ; mere matters of convenience and economy to the condemning company are alone insufficient to justify a taking; and when the rule is brought to bear upon varying states of fact other considerations may arise of the highest importance in determining the manner in which the relative requirements of the two roads should be adjusted.
In other respects the positions taken in the former opinion of the court are likewise adhered to, but, for the reasons stated above, the judgment denying the full relief prayed for in the petition is reversed, and the trial court is directed to proceed in accordance with the views herein expressed.
All the Justices concurring.