Chi., B. & N. Ry. Co. v. Porter

• Decision Date: 23 June 1890
• Citation: 46 N.W. 75,43 Minn. 527
• Parties: CHICAGO, B. & N. RY. CO. v PORTER.
• Court: Minnesota Supreme Court

43 Minn. 527

46 N.W. 75

CHICAGO, B. & N. RY. CO.vPORTER.

Supreme Court of Minnesota.

June 23, 1890.

(Syllabus by the Court.)

1. An ordinance of the city of Winona, held to be sufficient consent on the part of the common council to the laying of a certain railroad switch track in that city.

2. Whether the use for which lands for the construction of a railroad track are to be taken is a public or private use does not depend on the number of persons who may have occasion to use it. If all people have a right to its use, it is a public use, though the number who require the use may be small.

3. Upon the hearing under section 17, c. 34, Gen. St. 1878, as amended by section 1, c. 35, Laws 1879, of a petition for the appointment of commissioners to determine the compensation for taking lands for railroad purposes, it is for the petitioner to prove its incorporation.

Appeal from district court, Winona county; START, Judge.

Wilson & Bowers, for appellant.

Gale & Brown, for respondent.

GILFILLAN, C. J.

This is an appeal from an order made on the application of the plaintiff, appointing commissioners to appraise the damages to be paid by it for taking private property for public use, for the purpose of constructing a switch track in the city of Winona, from its main track, along a line described in its petition to the manufacturing establishments of the Laird-Norton Company. The proposed switch line runs partly upon a public alley and partly upon private property, and crosses at least one public street. The defendants, owners of land proposed to be taken, appeared before the district court to which the application was made, and opposed it, and, after a hearing, the court granted the application, and defendants appeal. The assignments of error make three points, all of which we will consider, though not in the order in which they are stated in the assignments: First. The city of Winona did not authorize the petitioner to construct, operate, or maintain such line. Second. The proposed condemnation is not for a public use, but for a private use, and no public necessity is shown for it. Third. The evidence does not show that the petitioner is a corporation, or that it is authorized by law to construct, maintain, or operate any railroad in this state.

The charter of the city of Winona (chapter 20, Sp. Laws 1867) gives the common council (section 2, subc. 4) authority, “by ordinances, resolutions, or by-laws,” among other things, “to direct and control the location of railroad tracks.” Subdivision 24. August 2, 1886, the common council passed an ordinance granting to the Chicago, Burlington & Northern Railroad Company authority to construct its main line through the city, and upon and across certain streets, describing the line, “and also, from time to time, to construct, operate, and maintain, from its main track to commercial and manufacturing establishments and yards northward from said main track, situate within seven hundred feet of its main line, such side tracks and switch tracks as such commercial and industrial interests may require.” Section 3 of the ordinance prescribes regulations as to width of tracks, and how to be laid with reference to the grade or surface, when laid in a street or alley, and as to the crossings at streets or alleys. The switch track here in question comes within the limits of that part of the ordinance quoted, and, so far as the right to lay it on the line proposed depended upon the consent of the council, the plaintiff had the right. But the ordinance could not have the effect of giving authority to construct a railroad or any part of a railroad, and for that purpose to take private property. That authority must be derived from the legislature. The power conferred by the charter on the council, “to direct and control the location of railroad tracks,” does not include the power to authorize the constructing of railroads, and the exercise of the right of eminent domain. It merely vests in the council as part of its police power, to be exercised in providing for the public safety and convenience, in the use of streets and alleys, a supervision over the location of railroad tracks, where the authority to construct the railroad already exists, including the power to designate what streets and alleys may be laid upon. If the plaintiff had legislative authority to construct, maintain, and operate a railroad with side and switch tracks, and to take private property for the purpose, it need look to the council for nothing more than consent to its locating its tracks upon particular streets and alleys, which, as we have seen, was...