Ames v. Lake Superior & Mississippi Railroad Co.

• Decision Date: 11 January 1875
• Citation: 21 Minn. 241
• Parties: OAKES AMES & another, Executors, <I>vs.</I> LAKE SUPERIOR & MISSISSIPPI RAILROAD COMPANY.
• Court: Minnesota Supreme Court

Page 241

21 Minn. 241

OAKES AMES & another, Executors, vs. LAKE SUPERIOR & MISSISSIPPI RAILROAD COMPANY.

Supreme Court of Minnesota.

January 11, 1875.

On Re-argument, October 12, 1875.

Plaintiffs brought this action in the court of common pleas for Ramsey county, to restrain the defendant from entering upon land of the plaintiffs in that county, and constructing its railroad thereon. In their complaint, they allege that the defendant is a corporation organized under the general railway law of the state, and also assuming to act as a corporation, under and by virtue of the special legislation hereinafter mentioned. The defendant, in its answer, asserts its right to take the plaintiffs' land for the purpose of its road, by virtue of such special legislation, and of proceedings for condemnation duly taken as therein provided.

At the trial, before Hall, J., it was admitted that the land in question was necessary for the purposes of defendant's railway, that the plaintiffs claimed no relief on the ground that the defendant entered upon their land before securing compensation, and that the defendant claims no corporate rights, except under the special legislation hereinafter mentioned. It was further admitted that in the year 1857, Minnesota extended to the Missouri river, and Nebraska from the Missouri river to the Rocky Mountains; that Nebraska extended as far north as, and farther south, than Minnesota; that Cheyenne City was one degree north of Duluth, at the junction of the Cheyenne river and the Red River of the North. The special legislation under which defendant claims is as follows:

On May 23, 1857, the legislative assembly of the then Territory of Minnesota passed an act entitled "An act to incorporate the Nebraska & Lake Superior Railroad Company," (Laws 1857, ex. sess., ch. 93,) in which it is enacted as follows:

"SEC. 1. That Erastus Corning and Edward C. Delavan, of Albany; John F. Seymour and Ward Hunt, of Utica; Sam. F. Butterworth, Guillaume Merle and John F. Butterworth, of New York; Daniel Tyler, of Connecticut; Benjamin W. Raymond, Chicago; Edward Martindale, New Jersey; Lowell Holbrook and Anson Blake, of Brooklyn, and William B. Jackson, Remsin, New York; Sumner J. Smith and Edmund F. Ely, Minnesota Territory; Edmund Rice, Alexander Wilkin, Franklin Steele, Reuben H. Carleton, W. W. Kingsbury, Thomas Clark, 2nd., Benjamin Thompson, S. B. Abbe, S. B. Lowry, Joseph R. Brown, and J. S. Watrous, and their associates, successors and assigns, be and they hereby are constituted a body corporate and politic, by the name and style of The Nebraska and Lake Superior Railroad Company, and by that name and style shall be capable in law of taking, purchasing, holding, leasing, selling, mortgaging and conveying real estate and property, whether real, personal or mixed, so far as may be necessary or convenient for the purposes hereinafter mentioned, and in their corporate name may sue and be sued, plead and be impleaded, contract and be contracted with, and may have a common seal, which they may alter or renew at pleasure, and may have and exercise all powers, rights, privileges and immunities which are or may be necessary or convenient to carry into effect the purposes and objects of this act, and of the said corporation.

"SEC. 2. The said corporation is hereby authorized and empowered to survey, locate, construct, maintain, use and operate at pleasure, to alter the line thereof, without changing the eastern terminus, a railroad, with one or more tracks or lines of rails, to commence at some convenient point or place (within the Territory of Minnesota) at the west end of Lake Superior, or on Superior Bay, in said territory, or on the Bay of Saint Louis, in the Territory of Minnesota, and running thence westerly, within said territory, via Cheyenne City, to the Nebraska line, or such route as the corporators may deem most expedient, with a branch from some point east of the Mississippi to the Wisconsin state line at Taylor's Falls, together with all proper stations, depots, turn-outs, engines, cars, and other appurtenances and furniture of a railroad.

"SEC. 3. The capital stock of said corporation shall be ten millions of dollars, and shall be divided into shares of one hundred dollars each," etc.

"SEC. 4. The above named persons, or one-fourth of them, are hereby authorized to open books for receiving subscriptions to the capital stock of said company, which books may be opened at such times and places as a majority of said corporators may determine; * * * said books may be kept open thirty days, or until the sum of three hundred thousand dollars of the capital stock of said company shall be subscribed. And as soon as said sum of $300,000 shall have been subscribed to the capital stock of said company, and five per cent. of the amount so subscribed paid in, * * * the above named persons, or a majority of them, may give like notice of a meeting of the stockholders, at such time and place as they may deem expedient, to choose directors," etc. Sec. 5 prescribes certain powers and duties of the board of directors.

"SEC. 6. The said corporation are hereby authorized and empowered to cause such surveys and examination to be made as shall be necessary to ascertain the most advantageous route whereon to construct the railroad; and to cause estimates to be made of the probable cost thereof. Said road shall be surveyed and located to Nebraska in three years; work shall be commenced on at least one hundred miles of the easterly section thereof in three years, and shall be completed to the Mississippi river and to Taylor's Falls in not exceeding eight years, from the passage of this act."

Sec. 7 authorizes the company to build its railroad across highways and navigable streams.

Sec. 8 gives the company a right of way to the width of two hundred feet, and the right to enter upon lands, etc.

Sec. 9 prescribes the proceedings to be taken by the company for the taking of private property for the purposes of its railroad, and contains the usual provision for a trial by jury, on appeal from the award of the commissioners.

Sec. 10 gives the corporation the power to consolidate with any other company having the same general direction or location, etc.

Sec. 11 authorizes the company to borrow money, and execute bonds, mortgages, etc.

Sec. 12 provides that lands granted by congress may be granted directly to the company, etc.

Sec. 13 gives the right to pass over connecting railroads, etc.

Sec. 14 provides that the company shall, if required, carry the United States mail.

Sec. 15 provides a penalty for wilful injury to the railroad.

Sec. 16 provides that conductors, etc., shall wear badges.

Sec. 17 provides that every locomotive shall carry a bell, which shall be rung, etc.

"Sec. 18. This act is hereby declared to be a public act, and may be amended by any subsequent legislative assembly, in any manner not destroying or impairing the vested rights of said corporation.

"Sec. 19. The said company shall give notice in writing to the governor of said territory, on or before the first day of January, 1858, of their intention to proceed under the provisions of this act, and in case of their failure to give such notice, this act, and all the powers herein granted, shall become null and void."

Prior to January 1, 1858, eighteen of the corporators above named notified the governor of the territory of their acceptance of the charter, and of their intention to proceed under its provisions. This notification bears date September 12, 1857, and was filed in the office of the secretary of the territory, on December 26, 1857.

It does not appear that the above named corporators, or any of them, ever took any further step to carry out the purposes of the act.

Minnesota was admitted into the Union in 1858, with a constitution which provides, art. 10, § 2, that "no corporations shall be formed under special acts, except for municipal purposes."

On March 8, 1861, the legislature of the State of Minnesota passed an act entitled "An act to amend an act entitled an act to incorporate the Nebraska and Lake Superior Railroad Company," (Sp. Laws, 1861, ch. 1,) in which it is enacted as follows:

"Section 1. That the act of the territorial legislature of Minnesota, entitled an act to incorporate the Nebraska and Lake Superior Railroad Company, approved May 23, 1857, be and the same is hereby amended and continued so that it shall read as follows: That Lyman Dayton, John McKusick, Henry A. Swift, Richard Chute, Dwight Woodbury, C. T. Stearns, Thomas Clark, Levi Butler, Sidney Luce, E. O. Hamlin, A. F. Hawley and A. G. Chatfield, of the State of Minnesota, Anson Blake, Erastus Corning, Orville Clark, of the State of New York, Eber B. Ward and A. H. Hanchett, of Michigan, and their associates, successors and assigns, be, and they are hereby constituted a body corporate and politic, by the name and style of `The Lake Superior and Mississippi Railroad Company,' and by that name and style shall be capable in law of taking, purchasing, holding, leasing, selling, mortgaging and conveying real estate," etc., the remainder of the section following the language of § 1 of the act of 1857.

"Sec. 2. That said corporation is hereby authorized and empowered to survey, locate, construct, maintain, use and operate, and at pleasure to alter the line thereof, a railroad, with one or more tracks or lines of rails, to commence at some convenient point or place, within the State of Minnesota, at the west end of Lake Superior, and running thence, by the most feasible route, within this state, to some point on the Mississippi, with the right to extend the same to the Minnesota river, and also with the right to construct a branch from the main line to the navigable waters of the Saint Croix, together with all proper stations, depots, turnouts, engines, cars, and other appurtenances and furniture of a railroad: Provided, that said company shall...