rated under the laws of Montana. There were other defendants organized under the laws of other states. The railroads were on a mountainside, at a place called "Butte Hill," in a mining region, and their principal object was to haul ores from, and supplies to, the several quartz mines indicated upon the map. A part of the right of way of the Montana Union Railway Company had never been used by it for railroad purposes for the several years during which the road had been constructed and in operation, and was not reasonably requisite for future uses. The Butte, Anaconda & Pacific Railway Company, in the location of its only really practicable route, desired to take parts of such unused portions of the Montana Union right of way, such portions being necessary for their actual use, and unnecessary for the actual use of the Montana Union. The plaintiff alleged its right to construct railways; that the public interest required the railway in question; that it was necessary to take certain portions of the Montana Union's right of way; that, in its construction, it was necessary to cross and intersect the Montana Union Railway; that there were about twelve of these crossingsone at the Modock mine; one over the spur leading to the Anaconda orehouse, marked B on the map; one over the spur leading to the Anaconda orehouse, marked C on the map; one over the spur leading to the Gagnon mining claim, marked D; one over the Haggin spur, marked E; one over the Buffalo spur, marked F; one over the spur leading to the Mountain Consolidated mine, marked G; one over the spur leading to the Green Mountain and Wake Up Jim orehouses, marked H; one over the spur leading to the orehouse of the High Ore mine, marked I; one over the Haggin spur, leading to the High Ore mine orehouse, marked J; one over the spur leading from the Haggin spur to the boilerhouse of the Anaconda mine, marked K; and another over the Haggin spur, near the timber shop at the Anaconda mine, marked L.

The plaintiff alleged that the use for which it sought to condemn the property, and to which the property was to be applied by the plaintiff, was a "more necessary public use" than any use to which the defendants could put the lands; that the various crossings and intersections proposed were to be made in the manner most compatible with the greatest public benefit, and the least private injury to the defendants; and that as proposed, the crossings would not, in any way, interfere with the use, operation, or enjoyment by the defendants of their railway lines. The complaint contained an accurate description of the lands which the plaintiff wished to use for right of way purposes. The plain

tiff further alleged that it had been unable to agree with the defendants as to the amount of compensation to be paid for the taking of the premises described, and the construction of crossings, and that the interest in the premises sought to be condemned for the plaintiff's use was only an easement for a right of way for the construction, maintenance, and operation of its railway. The complaint prayed for a judgment that the use for which the plaintiff sought to appropriate the premises was a "public use"; that the public interests required the construction of the plaintiff's railway; that the lands, and the crossings proposed to be made, were necessary for the purpose of said railway; that the plaintiff had a right to appropriate the premises and make the crossings; that the court ascertain the defendants' interest in the premises described and sought to be condemned; that an order be made appointing three competent and disinterested persons as commissioners to assess the damages by reason of the appropriation of the said property; that on the coming in of the report of the commissioners, the court make such order in regard to the possession of said property sought to be condemned as might be proper; and that, as to the crossings, the court adjudge, regulate, and determine the place and manner of making the same.

Except as to the allegation of the plaintiff's right, under its charter, to construct railroads, the answer denied the averments of the complaint, and alleged that the ground sought to be condemned was absolutely necessary to the defendants for railroad purposes; that the desired right of way was not indispensable to the use of said plaintiff; that it sought such appropriation to save the cost of acquiring a right of way for itself; that the proposed construction by plaintiff would be of irreparable damage to the defendants; that by a slight increase of cost, plaintiff could avoid all the crossings; that it was not necessary that the crossings should be laid as contemplated by the plaintiff; that the plaintiff had no right to enter upon the right of way or roadbed of defendants, except for necessary crossings or connections; and that therefore the plaintiff had no right of condemnation over the right of way of these defendants.

The replication of the plaintiff denied these affirmative allegations of the answer. The cause was tried before the court, without a jury, and voluminous testimony was taken. There was a judgment for the plaintiff. The judgment and order of the court, after its more formal recitals, set forth that the judge of the district court, with a civil engineer chosen by each party, inspected the premises before the submission of the case. It

was then decided that the use for which the property described in the complaint was sought was a public use; that the entire quantity sought to be appropriated ought so to be taken; that the appropriation thereof would not be detrimental to the public interest or welfare, and was required and necessary for the proper prosecution of the enterprise for which it was sought to be appropriated; that the public interest required the prosecution of the plaintiff's said enterprise; that the premises so sought to be appropriated by the plaintiff were not necessary for the use of the defendant's railway, nor for any public use, and were not in actual use by them; that the use for which the plaintiff sought to condemn the premises, and to which they were to be applied by the plaintiff, was a "more necessary public use" than any use to which the defendants had or could put said lands; that the right sought to be obtained was an easement for railroad purposes; and that the crossings and intersections described by the plaintiff were necessary and proper. Three competent and disinterested persons, Clinton C. Clark, Justin Butler, and C. J. Stevenson, were appointed commissioners to ascertain and determine damages.

After expressly granting the right to cross over the defendants' spur known as the "Gagnon Spur," on the Clear Grit claim, the court made the following proviso: "Provided, however, the defendants may, and if they do, within ten days after the date hereof, give notice in writing to the plaintiff, that they consent to the plaintiff's taking up their entire Gagnon spur aforesaid, and placing and rebuilding the same on the south side of the defendants' main track, opposite, or about opposite, its present position, then, in that case, the plaintiff shall, at its own expense, and within a reasonable time after the giving of said notice, remove and place and rebuild the said spur on the south side of the defendant's main track, opposite, or nearly opposite, its present position, and make the same convenient to approach by and for teams and wagons, and provide proper approaches thereto; and provided further, that if such consent be not given within the time and in the manner aforesaid, then the plaintiff may and shall extend its road across such spur at the present grade of the plaintiff's road, and the plaintiff shall not be obliged to put in any crossing, and, in such case, the defendants, if they desire to operate said spur or use the same, shall make the same conform to the grade of plaintiff's road and track, and put in a crossing at the grade of plaintiff's track, and maintain the same, all at their own expense."

AM ST. REP., VOL. L.-33

The court also ordered that the plaintiff might cross the defendant's spur known as the "Buffalo Spur" at an angle of 16 degrees, 48 minutes. Concerning this spur, the court added: "Provided, however, that the defendants may, and if they do, within ten days from the date of this order, notify the plaintiff in writing that they consent to permit the plaintiff to raise the entire grade of the said Buffalo spur, so that the plaintiff can cross the same at its own grade, then, in that event, the plaintiff shall, before making said crossing, raise the grade of the whole of said spur, at its own expense, so as to make a feasible crossing with its road, and leave said spur in a reasonable condition for the use of the defendants; and provided further, that if the defendants do not give such consent within the said time and in the said manner, the plaintiff shall make said crossing at its own grade, in as reasonably safe manner as the same can be done without raising the grade of the entire Buffalo spur aforesaid."

Other facts sufficiently appear in the opinion. There being a judgment for the plaintiff, the defendants moved for a new trial, which was denied, and an appeal was taken both from the judgment and the order overruling the motion for a new trial. The following is a copy of the plat introduced on the trial. (See next page.)

Shropshire & Burleigh and Forbis & Forbis, for the appellants.

M. Kirkpatrick, W. W. Dixon, and William Scallon, for the respondent.

522 HUNT, J. By this appeal we are called upon to decide questions of importance, not alone to the community at large, but especially so to railroad corporations, possessed of such powers as may be granted to them under the constitution and laws of the state.

The topography of Montana, as characterized by its name, renders it of unusual significance that the laws of eminent domain be correctly expounded at this comparatively early period of the development of the state.

The strict limits of all delegated authority to take the property of another must be cautiously and accurately guarded, lest private rights or those conferred be unnecessarily invaded. On the other hand, if the power to take has been delegated, 523 that power must be precisely defined and upheld by the courts, as one vitally affecting the material interests of the state.

The ways for railroads to reach remote mining camps, some