was an attempt to run through the plaintiff's yard, and the crossing of some of its yard tracks and switches, which were merely incident to the use of its main line. As was well observed by the court below: "The attempt is not simply to cross the yard and tracks with a common use, but absolutely to take from plaintiff a portion of their yard for the sole use of the defendant. The issue is not, in what mode the defendant should cross plaintiff's property, but solely whether it can cross at all.'" So in the case of Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 668, 4 Sup. Ct. 185, 28 L. Ed. 291, it was held: "The provision in the constitution of Colorado that 'every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad,' only implies a mechanical union of the tracks of the roads so as to admit of the convenient passage of cars from one to the other, and does not of itself imply the right of connecting business with business." In State v. New Haven & Northampton Co., 45 Conn. 331, it was decided that the location of a railroad for two miles close beside a turnpike, the traveled path of which was in some places changed to make room for the road, did not constitute an "intersecting" of the highway by the railroad; that term applying only to the case of a railroad crossing a highway. See, also, St. Louis, A. & T. H. R. Co. v. City of Belleville, 122 Ill. 376, 12 N. E. 680. Hence the board of railroad commissioners had no jurisdiction to determine the rights of the parties to this suit. It is further argued by plaintiff in error that the general law of eminent domain did not authorize the taking by the Orient Company of the property sought to be condemned, because it was already devoted to an equally urgent public use by another railroad company, and was necessary to such use. In 1 Lewis, Em. Dom. (2d Ed.) § 267, it is said: "The general authority to locate and construct a railroad from one point to another does not authorize the taking of property already devoted to railroad uses. In one of the cases cited the court says: 'A charter to build and maintain a railroad between certain points, without describing its course and direction, but leaving that to be determined and established by the corporation, as provided by the general laws, does not prima facie give any power to lay out the road over land already devoted to, and within the recorded location of, another railroad. It is not to be presumed that the legislature intended to allow land thus devoted to one public use to be subjected to another, uniess the authority is given in express words or by necessary implication. And such implication can only be found in the language of the act, or from the application of the act to the subject-matter, so that the railroad could not be laid, in whole or in part, by reasonable intendment, on any other line.' The legislature may authorize one railroad to take the property of another, and, as indi cated in the opinion just quoted, this may be done by express words or by necessary implication. These general rules are undoubted, but their application to particular cases is often attended with much difficulty, as will appear from the following sections." But the mere fact that land is owned by one railroad company does not forbid its acquisition by another. Exclusiveness of right must depend upon reasonable requisiteness. One occupation justly may be reduced to the subservience of another paramount in its importance. Hence the character and extent of the use of its real estate by one railway company are always open to inquiry when sought to be taken by another under the power of eminent domain. In the same section of the work quoted the author says: "The general rule above stated does not apply to prevent one railroad taking the property of another, which is not in use for railroad purposes, and not necessary to the proper exercise of the corporate franchises." It follows from this that in all cases in which an appropriation of land for the purposes of a railroad about to be constructed is desired it may proceed to take any real estate necessary for its own use, not already absorbed in the necessary satisfaction of similar wants. The condemning company must, in the first instance, determine the relative requirements of the two roads for itself. It does this by laying out its road, procuring an assessment of damages, and proceeding to build. If obstructed in its operations, it may invoke the aid of a court of equity, and, if the company tlfrough whose land the new road passes feels aggrieved, it may resort to the same forum for redress. The issues in such cases lie within the realm of fact, and the judgment of the trial court upon them is conclusive to the same extent as in other cases. In the case at bar issues of the precise character described above were framed by the pleadings. Upon the hearing the district court had before it all the facts which each party could urge in its own favor. Enough having been produced to sustain the judgment rendered, this court cannot interfere. The writer is of the opinion that the views expressed in the foregoing discussion relating to the scope of the act of 1901 are too narrow. Separating the most pregnant parts of the first sentence of section 14 by punctuation marks, the law reads as follows: "Any railroad company authorized to operate a railroad in this state desiring to cross, or unite its tracks with, any other railroad, upon the grounds of such other railway corporation, shall make application in writing to the board of railroad commissioners, stating the place of crossing or intersection." In construing this language it is not necessary that a railroad should be reduced to a track. The title of the act reads, "An act concerning railroads and other common carriers," and, if the same condensing process were applied to the word as used there, the enough to include grounds used for railway purposes, and that the board of railroad commissioners were intended to have jurisdiction over all conflicts arising from the crossing of one company's property by another road. Mr. Justice JOHNSTON concurs with me in these views. However, the majority of the court being of a contrary opinion, the judgment of the district court is affirmed. DOSTER, C. J., and SMITH, CUNNINGHAM, GREENE, and POLLOCK, JJ., con cur. (8 Idaho, 644) ited, et al. (Supreme Court of Idaho. Dec. 4, 1902.) CHATTEL MORTGAGE-LIEN ON REALTY. 1. A hotel building, affixed to land, and held and conveyed with the land upon which it stands as real estate, cannot thereafter, by mere agreement of the parties, become a chattel or personal property, and legally incumbered by a chattel mortgage, until after its severance from the land. 2. A chattel mortgage on real estate creates no lien thereon, as the provisions of section 3385, Rev. St., as amended, are a prohibition against mortgaging real estate by chattel mortgage. (Syllabus by the Court.) Appeal from district court, Kootenai county; A. E. Mayhew, Judge. law would fail. In the Century Dictionary, under the title "Railway," the following description is given: "The parts of an ordinary passenger and freight railway proper are the roadbed, ballast, sleepers, rails, rail chairs, splices, spikes, switch mechanism, collectively called 'permanent way,' and the signals; but in common and accepted usage the meaning of the terms 'railway' and 'railroad' has been extended to include not only the permanent way, but everything necessary to its operation, as the rolling stock and buildings, including stations, warehouses, roundhouses, locomotive shops, car shops, and repair shops, and also all other property of the operating company, as stocks, bonds, and other securities." Therefore the legitimate meaning of BEELER v. C. C. MERCANTILE CO., Limthe statute properly may be held to be: “Any railroad company authorized to operate a railroad in this state desiring to cross another railroad's grounds, or unite its track with any other railroad upon the grounds of such other railway corporation, shall make application," etc. At the time of the passage of the act of 1901 the law of 1868 was the only one in force upon the statute book. Section 47 of that law, which left the conduct of contending railway companies to be governed, in the first instance, by the golden rule, was evidently deemed to be insufficient. Whenever one railway company desired to enter upon the grounds of another, it usually selected "seeling night" or the Sabbath day as the time for its operations. The approach of one railroad to another led to a system of fortification and depredation, raid and reprisal, born probably of other motives than simple zeal for the public good. Every railroad company is as tenacious of its grounds as it is of its track. These may be crossed from point to point without an intersection of tracks. Roundhouses, coal trestles, and other structures are as important to the company as tracks themselves, and may be interfered with, and no good reason appears why the jurisdiction of the board of railroad commissioners should be forbidden to attach until two tracks are about to cross. The same evils arise in each case, and require the same remedy. The board of railroad commissioners is better equipped than a court of equity for the determination of all such controversies. The questions themselves are really administrative in character, and not judicial, though involving the exercise of sound and expert judgment. The procedure prevents trespass by determining the question of necessity before any entry is made, and the award can do substantial justice to all the interests of both roads, general and local, and thereby to the public as well. All this was in the purview of the legislature with respect to tracks, and why not with respect to the ground a few feet from the ends of the ties as well as to that between the rails? I am satisfied the legislature used the word "railroad," in the section under consideration, in a sense large Action by Bridget E. Beeler against the C. C. Mercantile Company, Limited, and others. Judgment for defendants, and plaintiff appeals. Reversed. Charles L. Heitman, for appellant. J. B. Goode, for respondents. SULLIVAN, J. This action was brought to enjoin the sheriff of Kootenai county from foreclosing a chattel mortgage on a hotel building situated in Bonner's Ferry, under the provisions of sections 3390-3393 of the Revised Statutes, by notice and sale, and to have said chattel mortgage declared null and void. The facts are substantially as follows: On April 11, 1900, Joseph P. Beeler executed to the C. C. Mercantile Company, Limited, five promissory notes amounting in the aggregate to $900, and to secure the payment of the same executed said chattel mortgage on the hotel building known as the "International Hotel," situated on lots 1, 2, 3, and 4, in block 5, First addition to Bonner's Ferry, Kootenai county. Said hotel building is referred to as personal property in said mortgage. Said Beeler thereafter died, and Bridget E. Beeler was appointed administratrix of his estate, and commenced this suit as such administratrix. On April 11, 1901, the respondent corporation began proceedings to foreclose said chattel mortgage by the sheriff, under the provisions of the above-cited sections of the Revised Statutes, and this action was commenced for the purpose above stated, and resulted in a judgment in favor of the respondent corporation. The pleadings are of considerable length, but the main issue is as to whether said hotel building is personal property or real estate. There is no substantial conflict in the evidence. The evidence shows that said hotel building is a large, substantial, two-story frame building, consisting of 20 or more rooms. A part of it had been removed to said lots, and a part built thereon by the predecessors of Beeler. It also appears that said lots of land, together with the hotel building, had for some time prior to the date of said chattel mortgage been owned, conveyed, occupied, and used by the grantors of Beeler as real estate, and on April 11, 1900, said grantors, by warranty deed, conveyed said hotel building, together with said lots of real estate, to said Beeler, and he used, held, and occupied it as real estate during his lifetime. It also appears that Lucas, Markle, and Gray, grantors of said Beeler, had incumbered said real estate by giving a real estate mortgage thereon to the respondent corporation, and that said lots and hotel building were treated as real estate by it. It also appears that said Beeler sold and conveyed to the respondent the east half of said lots, with the agreement and understanding that he could remove said hotel building from said lots; that he undertook to remove a part of it,-the kitchen,but was prevented from doing so by an adjoining property owner, and then moved it back again. It also appears that said chattel mortgage is dated April 11, 1900, and the deed from Beeler conveying the east half of said lots to the respondent was dated April 12, 1900; that, although the two instruments bear different dates, they were the culmination of a single agreement, by which Beeler had the right to remove said building. It appears that it was discussed between the parties as to what kind of a mortgage Beeler should give on the hotel building to protect the respondent, and it was finally decided that it should be a chattel mortgage, and it was given. It is thus made to appear that it was the intention and agreement of the parties that said hotel building should be considered to be personal property. It is also shown that the estate of said decedent is insolvent. The main contention is as to whether said hotel building, under those facts, is real estate or personal property. It is contended by counsel for respondent that it is personal property; for the reason that at the time Beeler became the owner of it and the lots on which it stood he elected, for his own convenience, to treat the hotel building as a chattel, and to mortgage it as such, so that he might remove it from the lots, the east half of which he conveyed at the same time to another party; and that, having elected, at the very inception of his ownership, to treat it as a chattel, it became one; and that he might, under the law, place a valid chattel mortgage upon it. In support of that contention counsel cites Jones, Chat. Mortg. 124, and authorities there cited, and Ewell, Fixt. p. 68, and authorities there cited. The former authority holds that fixtures may become chattels by agreement of parties as between themselves, and it is conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot, in general, be changed by the convention or agreement of the parties. Mr. Ewell, after discussing the rule contended for by counsel, and citing authorities for and against it, says, on page 69, as follows: "The better reason and the weight of authority is that such agreement [to change real estate to personal property] or understanding, express or implied, must have existence prior to the annexation of the chattel to the land; and that, if the thing is annexed by a stranger, without the prior consent of the owner of the land, or any contract with him, express or implied, it cannot afterwards become personal property by the mere oral assent of the landowner, without a severance from the land." In the case at bar the grantors of Joseph P. Beeler sold and conveyed to him by warranty deed said hotel building and the lots upon which it stood. They sold it as real estate, and Beeler bought it as real estate, and the building had not been severed from the land at the time said chattel mortgage was given or when this action was tried. In Burk v. Hollis, 98 Mass. 55, it is held that where a house, built on the land of another as personalty, was by him conveyed to the owner of the land, it at once becomes real estate, and the owner of the land cannot, by executing a chattel mortgage to secure part of the purchase money, sever and convey as personal estate any interest in it, merely by treating it as personal estate in the instrument of conveyance. Counsel for respondent relies to some extent upon Docking v. Frazell, 17 Pac. 160. That is a case from Kansas, and was twice appealed to the supreme court of that state. See 34 Kan. 29, 7 Pac. 618. On the first appeal the building in controversy was presumed to be real estate. Upon a retrial, after a reversal of the case, more testimony was introduced than at the original trial, and it was clearly shown that said building was moved onto leased lots, and by the terms of the written lease the lessee was required to remove the building placed thereon at the termination of the lease. And on the second appeal it was held that said building was personal property, and that a chattel mortgage given thereon was valid. Many of the authorities cited relate and apply to trade fixtures placed on leased premises with an agreement and understanding that they might be removed at the termination of the lease, and are not applicable to the facts of the case at bar. There is a clear distinction between that case and the one at bar. In the latter case the hotel building was erected on real estate owned by the persons who caused the hotel to be placed there, and had not been removed therefrom at the time said chattel mortgage was executed, and falls within the rule above quoted from Ewell on Fixtures to the effect that real estate fixtures cannot become personal property by the assent of the landowner without its severance from the land. Section 2825, Rev. St., defines the term "real estate" as follows: "Real property or real estate consists of: (1) Lands, possessory rights to land, ditch and water rights, and mining claims, both lode and placer; (2) that which is affixed to land; (3) that which is appurtenant to land." Said hotel building was affixed to and appurtenant to said lots of land at the time the chattel mortgage was given, and had prior to that date or on that date been transferred by warranty deed as real estate, and clearly was, under the terms of said section of the statute, real estate. Section 3385, Rev. St., as amended (see Acts 1899, p. 292), prescribes upon what property a chattel mortgage may be given, and is as follows: "Chattel mortgages may be made upon all property, goods or chattels, not defined by statute to be real estate, upon growing crops, and upon crops to be sown and grown in the future; but, should the persons executing mortgages upon crops, to be afterwards sown, fail to sow or cause the same to be sown, no lien of such mortgages shall attach to crops sown by other persons upon the lands described in said mortgages, except in so far as the mortgagors in said mortgages have or retain interests in said crops." The provisions of that section limit chattel mortgages to property other than real estate and upon crops. Therefore a valid chattel mortgage cannot be given upon property other than that there prescribed; and there is good reason for this rule, as the registry law requires (Acts 1899, p. 121) chattel mortgages to be filed with the county recorder, and kept there, and certain facts contained in the mortgage must be entered in a record kept for that purpose; while a real estate mortgage must be filed by the recorder and recorded at length in a record provided for that purpose. They are recorded in different books, and a real estate mortgage registered as a chattel mortgage, or vice versa, would not be a legal registry or recording. The provisions of said section are a prohibition against mortgaging real estate by chattel mortgage. After defining real estate and personal property, our statute prescribes the method and manner of incumbering and transfering each class, and it is not in the power of parties to waive or alter, by their agreement, any of these regulations. In Hoyle v. Railroad Co., 54 N. Y. 315, 13 Am. Rep. 595, the court, in referring to rules established by statute for the transfer of property, said: "These regulations have been adopted with 70 P.-60 regard not only to the interests of the parties immediately concerned, but also with regard to the interest of others in ascertaining the ownership of property." Also, see Richardson v. Copeland, 6 Gray, 536, 66 Am. Dec. 424. We think, under our statutes and the facts of this case, that the hotel building in controversy was real estate, and that said chattel mortgage created no lien upon it, and is therefore void. That being true, it is not necessary for us to pass upon the other errors assigned. The judgment must be reversed, and the cause remanded, with instructions to enter judgment in favor of the appellant as prayed for in the complaint. Costs are awarded to appellant. QUARLES, C. J., and STOCKSLAGER, J., concur. (8 Idaho, 625) NAPTON v. MEEK, County Auditor. (Supreme Court of Idaho. Dec. 2, 1902.) ELECTION LAW-CERTIFICATE OF DECLARATION. 1. The provisions of section 24 of an act approved February 2, 1899, commonly called the "Australian Ballot Law" (Laws 1899, p. 37), prescribing that declinations of persons nominated for public office shall be filed with the proper officer at least 30 days before election, are mandatory, and a nominee desiring to take advantage of said provisions must file his declination with the proper officer at least 30 days before the day of election. (Syllabus by the Court.) Application of Houston Napton for a writ of mandamus to Edgar Meek, clerk of the district court, and ex officio auditor and recorder of Canyon county, to file the declination of a candidate nominated for a public office. Writ denied. Alfred A. Fraser and Walter Griffith, for plaintiff. Rice & Thompson, for defendant. SULLIVAN, J. This is an original proceeding in this court for a writ of mandate to Edgar Meek, clerk of the district court, and ex officio auditor and recorder of Canyon county, to compel said auditor to file a certificate of nomination, whereby the plaintiff, Houston Napton, was nominated for the office of representative of the state of Idaho from said county, and to further command said auditor to have the name of the plaintiff properly printed on the official ballot of said county. It appears that one Allen K. Wright was nominated for said office of representative by the regular Democratic convention of said county, and that his name was duly certified, as by law required; that on the 1st day of October, 1902, he declined the nomination, by letter to the chairman of the Democratic committee of said county, on the ground that he had only been a resident of said county seven months. His written declination was certified by the register of the South Payette precinct of said Canyon 1 |