4 Fmnmnsr. Rmronrmn.
tervenor’s track along the proposed route, and along Lewis street, will
interfere with the use of the Wabash depot on that street, by impair-
ing access thereto; that the construction of such a track along said
street is not such a burden as was contemplated when said street was
dedicated to public use ; and that the property in said receivers' hands
will suffer great damage if the intervenor’s track is constructed along
said street, and across the Wabash tracks, as proposed. The Wa-
bash, St. Louis & Pacific Railway Company, by its answer, further
denies that this court has jurisdiction over the matter, because the
circuit court of the city of St. Louis is vested with exclusive juris-
diction over the condemnation of property in said city for railroad
‘ purposes by the constitution and laws of Missouri. The petition hav-
ing been referred to a master, he recommended that the intervenor’s
prayer be granted, upon condition that the transfer company pay the
cost of constructing and maintaining all crossings; and that, in op-
erating the road at such crossings, the intervenor shall yield the right
of way to the Wabash trains.
Hitchcock, Madcill cf Finkclnburg, for intervenor.
H. S. Priest, for receivers.
Henry T. Kent, for defendant. ·
Bmnwsn, J., (orally.) This is not a case where a foreign corporation
comes to this state and sues a domestic corporation, or where the con-
troversy is between citizens of different states, and where there is im-
posed upon us the absolute duty of determining the ultimate rights
of the parties. We have possession of this road by our receivers.
That possession is temporary. While it is true we might impose a
lien upon the road permanently, following the road through all time,
and binding upon whoever should succeed to the title, it does not
seem to us that we ought to go beyond the absolute necessities of the
case. Considering that our possession is temporary, the orders we
make should have a temporary effect only, if by so doing we do not
prejudice ultimate and further questions.
Now, so far as the validity of intervenor’s incorporation is con-`
cerned, it is a do facto railroad corporation. If there is any fraud
which was perpetrated in its organization, the attorney general of the
state can institute proceedings by quo warmnto to oust it, and that
will determine all the rights asserted, or attempted to be exercised.
So far as the validity of the ordinance is concerned, it appears to
be sufficient to justify us in the action we propose to take. You
want the privilege of crossing the tracks in possession of the receiv-
ers. You want the privilege of laying your tracks along a street,
which, as the master says, will impair access to a depot which be-
longs to, or the fee of which is in, the Wabash Railroad Company,
and which is in possession of our receivers. Now, whether it is neces-
sary that the power of eminent domain should be exercised to appro-
priate absolutely the right to cross these tracks; whether that consti-
tutional provision of the state of Missouri, that no property shall be