Kettle River Railroad Company v. Eastern Railway Company of Minnesota

• Decision Date: 04 October 1889
• Citation: 43 N.W. 469,41 Minn. 461
• Parties: Kettle River Railroad Company v. Eastern Railway Company of Minnesota and others
• Court: Minnesota Supreme Court

43 N.W. 469

41 Minn. 461

Kettle River Railroad Company v. Eastern Railway Company of Minnesota and others

Supreme Court of Minnesota

October 4, 1889

Appeal by defendants from an order of the district court for Pine County, McCluer, J., presiding, refusing to dissolve an injunction.

Order reversed, and modified.

Lusk & Bunn and Geo. L. Bunn, for appellants.

James Smith, Jr., W. A. Barr, and Julien T. Davies, for respondent.

OPINION

Vanderburgh, J.

The plaintiff was incorporated under the general laws in 1886 and, as is alleged, possesses the usual powers and franchises of railway corporations, and is authorized to build and operate a railway, with one or more tracks, from a point on the line of the St. Paul & Duluth Railroad in the county of Pine, in township 42 north of range 20, extending thence to a point on the right bank of Kettle river, in the same township, with extensions to reach any or all industries that are or may be hereafter established in said township, and localities adjoining the same, with all necessary and convenient tracks, side tracks, or track extensions, grounds etc., and with the right to locate a branch southerly to another point on Kettle river, and another to the east line of the state, with all necessary side tracks, etc.; it being the declared purpose of the company to operate such line or lines in connection with the St. Paul & Duluth Railroad. Prior to the incorporation of the plaintiff, the Kettle River Sandstone Company had been incorporated, and had become possessed of the title in fee to the lands in township 42 which are particularly described in the complaint, and upon which are large and valuable deposits of merchantable sandstone, which, it is alleged, could not be quarried and transported to market without the construction of a railroad to reach the same; and thereupon negotiations for such purpose were entered into between the plaintiff and the sandstone company, which finally resulted in the execution by them of the following indenture, with mutual covenants, and which forms the basis of this action:

"This indenture, made and concluded this first day of November 1887, by and between the Kettle River Sandstone Company, a corporation existing in the state of Minnesota, party of the first part, and the Kettle River Railroad Company, also a corporation existing in said state, party of the second part, witnesseth:

"That whereas, the first party is the owner in fee-simple of the following real estate situate in the county of Pine and state of Minnesota, described as follows, to wit: The south-west quarter, and the south half of the north-west quarter, and the south-west quarter of the north-east quarter, and the north-west quarter of the southeast quarter, of section three, (3;) also the east half of the northwest quarter, and the east half of the south-west quarter, and the west half of the south-east quarter, and the south-east quarter of the north-east quarter, of section ten, (10;) and the north-west quarter of the north-east quarter, and the north-west quarter of the south-east quarter, and the west half of the south-west quarter, and the north-east quarter of the south-west quarter, and so much of the east half of the north-west quarter of section fifteen (15) as is not included or embraced in the town-site of Sandstone, as the same is surveyed and platted, and the plat thereof recorded in the office of the register of deeds of Pine county, -- all in township forty-two (42) north, of range (20) west, according to the government survey thereof; upon which premises the said second party has, for the purpose of affording railroad facilities for the said first party, constructed its line of railroad, extending from a point of junction with the main line of the St. Paul & Duluth Railroad Company, in section eighteen, (18,) in said township and range, in said county of Pine, to a point on or near the right bank of Kettle river, in said section ten, (10,) town and range aforesaid, with side tracks and other railroad structures in and upon the premises of the said first party, above described, so as to afford facilities for the transportation of sandstone from the quarries of said first party now opened: And whereas, the principal value of the lands and premises of the said first party hereto consists of large and valuable deposits of marketable sandstone, and it is desirable for the said first party to secure the present and additional facilities to transport its marketable stone from said quarries, and other points of said premises, by having the second party extend its tracks and other connections from time to time, as hereinafter specifically provided, as such quarries may be opened and worked upon said real estate; and in consideration thereof, and to secure the said second party the right of way, and the right of transporting all of the said stone over its said line of railroad and extensions, upon the payment to said second party, its lessees, successors, and assigns, of a reasonable compensation for transporting the same:

"Now, therefore, the said first party, in consideration of the premises aforesaid, and of one dollar to it paid by the said second party, the receipt whereof is hereby acknowledged, does, by these presents, grant, bargain, sell, and convey to said second party, its successors, lessees, and assigns, forever, so much of said real estate and premises as may be necessary and convenient for the maintenance and operation of its line of railroad as the same is now constructed, or as the said second party may hereafter, from time to time, desire to relocate and construct the same, with all the necessary or convenient buildings, depots, engine-houses, water-tanks, turn-tables, and other structures, with all necessary and convenient turn-outs, yards, and side tracks; and also to construct thereon, and forever maintain and operate, a line of railroad from some convenient point on its said main line, to be selected by said second party, running thence to a point on the west bank of Kettle river, in said section ten, (10,) with all such portions of said real estate as said second party, or its successors and assigns, may require for additional tracks, side tracks, depots, and standing ground, and other structures, at such points and localities as said second party or its successors may from time to time select or designate. And also grants to said second party, its successors or assigns, the exclusive right of way, for railroad purposes, of such reasonable width as said second party may from time to time require and designate, so as to extend, operate, and use the same so as to reach all stone-quarries that may hereafter be opened or worked at any point, place, or locality within the limits of the real estate hereinbefore first described, and to connect such track or tracks with the tracks now or hereafter to be constructed by said first party, with the right also to bridge Kettle river at such points or places as may be designated by said second party from time to time, in order to reach the quarries that may be opened on the easterly side of said river:

"To have and to hold the above-granted premises, rights, and privileges to the said second party, its successors and assigns, forever; subject, however, to the right of the said first party, its successors, its lessees, and assigns, to quarry and remove the stone from said premises for transportation as aforesaid; and for that purpose the tracks of said second party on said premises, other than that of its main line, shall from time to time be adjusted and extended so as to enable said first party, and its lessees, successors, and assigns, to quarry and remove stone from any of said premises for transportation as aforesaid.

"And the said second party, for itself, its successors and assigns, covenants with said first party, its successors, lessees, and assigns, that it will from time to time, as said first party, or its successors or lessees, shall open any quarry or locality upon said premises hereinbefore described, and to which said first party shall properly grade and provide a suitable road-bed for such track or its extension, the said second party will, upon reasonable notice thereof, tie, iron, and operate such track or extension in connection with its main or its other tracks, and so from time to time, as such track extension is graded and required, will tie, iron, and operate the same as above provided, and will transport all stone so reached by its said tracks, when loaded upon its cars by said first party, its lessees or assigns, over its said line of railway, in connection with the railroad of the St. Paul & Duluth Railroad Company; and for that purpose it will, upon request from time to time, and within a reasonable time, furnish to said first party, its successors, lessees, and assigns, upon its said tracks, convenient for loading, all cars necessary for the transportation of such stone.

"It is further agreed that, in case the said first party, or its successors, lessees, or assigns, shall construct suitable railroad track or tracks from any of its quarries, or from the main or side tracks of the said second party, to its dumping grounds, for the removal of offal and unmarketable stone and other material, the said second party will, on reasonable notice, furnish cars therefor, and transport such material, provided the same is loaded and unloaded by said first party, or its successors, lessees, and assigns, for which said transportation said second party shall be paid a reasonable compensation.

"And the said first party covenants, for itself and its successors, that all marketable stone hereafter to be quarried, removed, and transported by rail from the lands or premises hereinbefore first...