Dissenting Opinion.
VALLIANT, J.The principle of law involved in this suit is so important and the consequences that may result from the establishment of the doctrine contended for by the plaintiff are so serious, that I feel constrained to, at least briefly, esqjress the reasons why I am unable to concur in the opinion *327of the majority of the court.
The evidence in the record showed to the satisfaction of the trial court, and it shows to my satisfaction, that this is a controversy between two rival coal companies wherein one, having assumed for the purpose the legal garb of a railroad • corporation, is endeavoring to shut its rival out from the market and reduce it to a dependency. The Kansas & Texas Coal Company and the Northwestern Coal & Mining Company are both owners and operators of coal mines in the same vicinity and rivals in business. Each company owns railroad tracks which it uses for the sole purpose of carrying the products of its own mines to a convenient point on the nearest public railroad. The defendant company is incorporated under the general statute relating to business and manufacturing corporations, and the Kansas & Texas Coal Company is a corporation of like character. But the stockholders and officers of the latter company have availed themselves of the provisions of the general statute in relation to railroads and have taken out a charter under the statute also, under the name of the Kansas & Texas Coal Railway and that corporation holds title to the railroad tracks in the service of the Kansas & Texas Coal Company, and is the plaintiff in this case. The identification of the two corporations in actual unity of interest and personnel of the incorporation is shown beyond question. That the so-called railroad corporation is but the agent of the coal company of that name, with no business, past, present or in contemplation but that of carrying the coal company’s product to the nearest railroad, is also beyond question. Now the Kansas & Texas Coal Company proposes in this proceeding in the name and in the garb of its alter ego, the Kansas & Texas Coal Railway, to condemn a right of way over the property of the defendant coal company for the construction of other railroad tracks which are in fact designed for the exclusive use of the Kansas & *328Texas Coal Company. The defendant by its answer says, and by its proof shows, that this is in fact bnt the taking of private property for a private use, that if the plaintiff is permitted to do as it proposes it will shut the defendant out from market and ruin its business, that it is an abuse not a use of the power of eminent domain. But the court is asked to say in reply: that question of fact we can not look into; the plaintiff comes with a charter in due form which denominates it a railroad corporation, no one but the State can question its right to exercise all the prerogatives of a railroad corporation, and if it condemns land for its use no one can question that that is a public use; its charter is conclusive on that point, and if the effect is to shut you out from market except upon such terms as your rival road may see fit to prescribe, still the court can not look beyond the charter for the real truth.
The defendant shows by its answer and evidence that the plaintiff’s demand is for but a wanton destruction of defendant’s business, that the plaintiff already has a right of way just as available as that sought to be condemned. But we are told that our answer to the defendant must be: we can not dictate to a railroad corporation where it will locate its lines, nor can we question its motives. The defendant being only a mining corporation, has no power to condemn, therefore, if its rival in this proceeding is permitted to lay its tracks as it may and as it is apprehended it will, the defendant can not cross the tracks with its railroad and is shut in. The evidence shows that if the plaintiff lays and operates its tracks so close to those of the defendant, whilst there may yet be room for trains to pass, still the appliances required for conveniently and economically handling its business can not be used and even the lives’ of its employees will be endangered. But the answer to all this is that the charter is conclusive, and the courts are not only powerless to grant any relief, but must even suffer themselves to be *329used to effect the gross -wrong and abuse. If that is the law we are in a bad way. If courts are so encrusted in form that they are not only powerless to do right, but must even yield themselves as instruments to effect a wrong, we are far from perfection. I do not believe that that is the law. When a suitor comes into court and asks its aid, the court has a right to know in what character he comes, real or fictitious. In my opinion, therefore, when the trial judge became satisfied that the real plaintiff in this case was the Kansas & Texas Coal Company wearing the mask of a railroad corporation, he had the authority and it was his' duty to refuse to appoint commissioners looking to a condemnation of the defendant’s property.
Even if a real railroad corporation should come into court seeking to condemn land ostensibly for railroad use and it should be shown to the court, as clearly as the true facts were shown in this case, that the real object was to obtain a site for a summer villa for its president, the court should refuse to appoint commissioners. Property taken for the real use of a real railroad company is taken for a public use, and the courts so declare as a matter of law, but the courts have never declared that all property sought to be taken in the name of a railroad corporation is conclusively adjudged to be sought for a public use, and that no inquiry into the truth can be had. It is argued in behalf of plaintiff in error that a railroad corporation chartered for the sole purpose of carrying to market the product of coal mines owned by the same men who own the railroad is engaged in a public service and may exercise the right of eminent domain, and numerous cases are cited as supporting that proposition. But that proposition does not measure up to the point the plaintiff seeks to reach in this case. If it has ever been decided that a coal company could take on itself the character of a railroad company for its own private use and exercise the right of eminent domain for the sole purpose of closing out its *330rival in business, and preventing another coal mining company from bringing its product to market, and that the courts were bound to assist it in that purpose, I have not seen such decision, and indeed would not care to see it.
There is nothing in the condemnation procedure prescribed by our statute that marks such narrow bounds for the court as to reduce it to a mere ministerial office without judgment or discretion. And if there is no precedent for the court in such matter to exercise a judicial power to reach the truth and justice of the case, it is our duty to make a precedent.
It is also argued that whatever may be the purpose of the plaintiff in seeking to condemn its right of way over defendant’s land, when its road is once built it becomes a public highway, and the plaintiff can be compelled by mandamus to carry the defendant’s coal on the same terms that it carries the coal of the Kansas and Texas Coal Company. True as that may be in theory, courts can not pretend not to know that it is only theory. The court should not require the defendant to submit to a wrong in the first place with a half promise to redress his injury at some future time.
The trial court was of the opinion that the condemnation of the forty-foot strip of defendant in question and the subjecting of it to the use of the plaintiff’s purpose would materially interfere with that use, that the defendant corporation had by law the right to use it, and the condemnation was therefore forbidden by section 2802, Bevised Statutes 1889, now section 1350, Bevised Statutes 1899. That section provides that when the property sought to be condemned is already held by a corporation, the right to condemn “shall be limited ,to such use as shall not materially interfere with the uses to which by law the corporation holding the same is authorized to put said property.”
Article 12, section 4, of the Constitution, ordains that *331the power of eminent domain shall not be so abridged as to prevent “the taking of property or franchises of incorporated companies * * * and subjecting them to the public use, the same as that of individuals.” But that does not mean that the property of a corporation which is already being applied to a particular public use may be taken from it by another corporation for the purpose of applying it to the same or even to another public use, if thereby the public use which it -is already serving is to be destroyed or impaired. So, this section of the statute is not repugnant to that clause of the Constitution.
It is contended by plaintiff that the corporation whose property is by the statute protected to some extent from condemnation is only a corporation which has the right to exercise eminent domain, and that the property so exempted is such as is held by it either by grant or condemnation for a public use. On the other hand, it seems to be argued that it applies to all property of all corporations. I am not inclined to the extreme view of either side of that question. But I third?: that the statute was intended to limit the condemnation of property held by a, corporation for a public use even though the corporation was not such as is authorized to exercise the right of eminent domain, and I do not think that it was designed to affect property that is held for merely private use. We may suppose two concerns each conducting the same kind of business, say a mercantile business side by side; the one ■is owned by a corporation, the other by an individual. The law could not have contemplated that the property of the individual might be taken and that of the corporation exempt. And on the other hand we recognize that there are corporations whose property is being used for a public purpose, yet which have not the power to condemn because they are not organized under the statute which confers such power. Many street *332railroad companies and some other corporations are of this character; they are public carriers and their property is in public use, but they are not organized under the general railroad statute.
Now it is argued in this case that although the defendant corporation owns and operates a raiilroad, yet as it is not chartered as a railroad corporation its railroad is .not devoted to a public use, whereas the plaintiff being so chartered its use is a public use. But we have seen that the actual use, pastj present and prospective, to which the railroads of each corporation is devoted, is exactly the same. The fact is the same in each instance. If a difference exists it is only in theory, and that theory purely fictitious. We are asked to say that it is lawful for the plaintiff to condemn the defendant’s property on the. theory that in defendant’s hands it is being devoted to private use, yet when condemned it is in plaintiff’s hand to be in-fact devoted to exactly the same character of use; that the charter makes one private and the other public, though they are in fact the same.
If there is any force in. the decisions referred to, which hold that a railroad designed and used- exclusively to bring to market the product of a coal mine is in public service, they establish the fact that the use’ to which the defendant is devoting the forty foot strip in question is a public use, and that being so the plaintiff, even |if it be a railroad corporation, is by the terms of the statute quoted, forbidden to impair the defendant’s use of the same.
For these reasons the action of the trial court in refusing to appoint commissioners was right, and its judgment should be affirmed.
Burgess, G. J., and Gantt, J., concur in the above views.