Bigelow v. Draper

• Decision Date: 11 November 1896
• Citation: 69 N.W. 570,6 N.D. 152
• Court: North Dakota Supreme Court

69 N.W. 570

6 N.D. 152

FRANK G. BIGELOW, et al v. C. E. V. DRAPER, et al

Supreme Court of North Dakota

November 11, 1896

Appeal from District Court, Morton County; Winchester, J.

Action by Frank G. Bigelow and Edwin H. McHenry, as receivers of the Northern Pacific Railroad Company, and others, against C. E V. Draper and others. Judgment for plaintiffs. Defendants C E. V. Draper and others appeal.

Modified.

Order reversed in part and affirmed in part and a new trial ordered.

Newton & Patterson, E. C. Rice, and James G. Campbell, for appellants.

The plaintiffs could not maintain this action without authority from the court appointing them, and none was shown. High on Rec. § 200; M. & St. L. R. Co. v. M. W. R. Co., 63 N.W. 1035; Booth v. Clark, 15 L.Ed. 164; Davis v. Gray, 21 L.Ed. 447; Pendleton v Russell, 36 L.Ed. 547; Rev. Codes, § 5406. The order making the Northern Pacific Railroad Company a party plaintiff, after verdict and repeated objections of appellant was error. 1 Enc. Pl. & Pr. 585 and cases cited. Beard v Telgman, 66 Hun. 12, 20 N.Y.S. 736. The enforcement of the right of eminent domain is a matter entirely dependant upon statute. Mills Em. Dom. § 48; Lewis Em. Dom. § 37; 1 Rorer on Railroads, 291. The power is strictly construed. 6 Am. and Eng. Enc. Law, 522; Mills Em. Dom. § 48; Barre R. Co. v. M. & W. R. R. Co., 4 L. R. A. 785, and statutes authorizing it will not be extended in their operation by implication. 1 Rorer on Railroads, 298. By § 210, constitution, the legislative power is restricted, in its right to delegate to plaintiff authority to turn the course of a natural stream. M. & R. R. Boom Co. v. Patterson, 98 U.S. 206; Lewis Em. Dom. § 10. This section of the constitution is self executing. Peo. v. Palmer, 64 Ill. 41; State v. Holladay, 64 Mo. 526; Hills v. Chicago, 60 Ill. 86; Willis v. Ry. Co., 16 L. R. A. 286. It is disabling, not enabling. State v. C. R. Co., 46 N.J.L. 289. The necessity for diverting the Heart river is not shown. Section 5959, Rev. Codes. The word "necessary" as used in this statute means indispensible, requisite or essential. M. & St. P. R. Co. v. City, 34 Wis. 271-277. The question of necessity is a judicial one. Pierce on Railroads, 148; M. & St. P. R. Co. v. City, 23 Minn. 167; In re St. P. & N. P. R. Co., 33 N.W. 701. And no mere matter of convenience, economy or caprice will create the necessity mentioned in the statute. Seattle & M. R. Co. v. State, 22 L. R. A. 217; Pugh v. Golden Valley R. Co. , (L. R.) 12 Ch. Div. 274; 6 Am. & Eng. Enc. L. 539; Watson v. Acq. W. Co., 36 N.J.L. 196; U. S. v. Chicago, 12 L.Ed. 660.

Ball, Watson & Maclay, for respondent.

The order allowing amendment of the summons and complaint by adding the name of the Northern Pacific Railroad Company as party plaintiff was proper. Section 5297, Rev. Codes. The railroad company was a necessary party. Section 5962, 5956, 2947, Subd. 3, Rev. Codes. The corporation which owns the road is the proper plaintiff in condemnation proceedings. Kip v. Railway, 67 N.Y. 227; Railway v. Union Boat Co., 1 N.E. 27; In re Railway, 2 N.Y.S. 278; Cory v. Ry., 44 A. and E. Ry. Cases, 183; Dietricks v. Ry. Co., 13 N.W. 624. Both the corporation and the receivers were interested and proper parties plaintiff. Section 5229, Rev. Codes. The issues both of law and fact, the method of trial and the testimony were the same as they would have been if the corporation had been named as one of the plaintiffs when the proceedings were begun. The amendment was purely formal. Perine v. Grand Lodge, 50 N.W. 1022; Railway v. Boswell, 36 N.E. 1103; Estes v. Thompson, 17 S.E. 98; Eve v. Cross, 76 Ga. 693; Thornton v. Britton, 22 At. Rep. 1048; Meyer v. State, 25 N.E. 351; Stanton v. Kenrick, 35 N.E. 19; Ins. Co. v. Mueller, 77 Ill. 22; Chandler v. Frost, 38 Ill. 559; Hume v. Kelley, 43 P. 380; Railway v. Bowles, 24 S.E. 388; Dean v. Gilbert, 36 N.Y.S. 1004. The amendment permitting the receivers to allege and prove their authority to sue was proper. Sections 5297, 5300, Rev. Codes; 1 Enc. Pl. & Pr. 515-516; Morgan v. Smith, 95 N.C. 396; Maddox v. Thorn, 60 Fed, Rep. 217; Hartford & Co. v. Love, 25 N.E. 346; Wild v. Railway, 27 P. 954; Clough v. Adams, 32 N.W. 10; Claude v. Handy, 34 At. Rep. 532; Hall v. Rice, 64 Cal. 463; Richmond v. Irons, 121 U.S. 27; Baggot v. Engleson, Hoff. Ch. 377. The right of trial by jury and due process of law have no application to condemnation proceedings. Cooley's Const. Lim. § § 563, 673, n; Beekman v. Railway, 3 Paige, Ch. 45; Peo. v. Smith, 21 N.Y. 595; Ex parte Reynolds, 44 Am. and Eng. R. R. Cases, 60; Willyard v. Hamilton, 7 Ohio 111; Ames v. Ry., 21 Minn. 241, 291; Hoppikus v. Com'rs, 16 Cal. 248; Great Falls Co. v. Garland, 25 F. 521. The question of the amount of damages is for the jury in this state. Section 14, Const. § § 5955, 5965, Rev. Codes. The order appointing receivers gave them power to begin this suit. Davis v. Gray, 16 Wall. 203; Harland v. Bankers, etc. Co., 33 F. 199; Southerland v. Railway, 9 Bank Reg. 306; 20 Am. & Eng. Enc. L. 230. The lands under a river may be condemned for use of a railroad. Kerr v. R. Co., 27 N.E. 833; In re N. Y. Cent. Ry. Co., 77 N.Y. 248; Gould v. Ry., 6 N.Y. 522; Getty v. Ry., 21 Barb. 617; Ormerod v. Ry., 13 F. 317. Under a statute similar in phraseology to 5957, and 5958, Rev. Codes, it is held that the right of an individual to enjoy the flow of water in its natural channel upon or along his land can be condemned for public use. St. Helena Water Co. v. Forbes, 62 Cal. 182. There was evidence to sustain the finding, that the taking was necessary, and the finding is conclusive. Port Huron, etc. Ry. v. Vorheis, 15 N.W. 882. The awards of damages are in no instance for a smaller sum than estimated by one or more witnesses, and should not be disturbed. Fremont, etc. Ry. Co. v. Meeker, 44 N.W. 79; Clark v Ry. Co., 37 N.W. 484.

OPINION

CORLISS, J.

The object of this action is to condemn certain property, in order that the Northern Pacific Railway Company (formerly the Northern Pacific Railroad Company) may divert from its accustomed channel, for a distance of two miles, the flow of the Heart river, a non-navigable water course, restoring the water to its old channel further down the stream. The end which the company has in view is to so change the bed of the stream, that it may be no longer compelled to cross the river at two points at which the water course intersects its right of way, thus obviating the necessity of maintaining two bridges at these places where the road is carried over the stream. The following diagram exhibits the proposed alterations in the channel of the river:

[SEE EXHIBIT "A" IN ORIGINAL]

In consummating this project, it became necessary to obtain the title, by condemnation proceedings or otherwise, to the real estate over which the artificial channel was to be excavated, and also the extinguishment of the riparian rights of the owners of the real property from whose land the water course was to be diverted. The action now before us for final disposition was instituted under our statute for the purpose of condemning these two classes of property. Section 5961 of the Revised Codes provides that all proceedings under the chapter regulating the exercise of the power of eminent domain must be prosecuted by civil action. The issues relating to the necessity for the condemnation of the property in question and the matter of compensation were tried before a jury. The verdict was in favor of the railroad company on the question of necessity. The damages of the various owners of the property affected by the proceedings were assessed by the jury. A final order of condemnation having been made and entered, under § 5970, Rev. Codes, three of the defendants have appealed to this court, and here insist that several errors were committed by the court in the course of the trial, and also that the damages assessed are inadequate under the evidence.

The first point urged by the defendants is that the court erred in permitting the plaintiff, after the verdict, to amend the summons, complaint, and all the proceedings by adding the name of the Northern Pacific Railroad Company as a party plaintiff. The action was originally instituted in the name of the receivers of the company, such receivers having been appointed by the proper United States Circuit Court in foreclosure proceedings. We think it was necessary that the action should be carried on in the name of the corporation itself. Section 5962, Rev. Codes, declares that the complaint must contain the name of the corporation, association commission, or person in charge of the public use for which the property is sought. We do not think that the word "person," in the statute, was designed to embrace a person acting as receiver for a railroad corporation. This word was employed to confer authority to institute a condemnation action upon a person in charge of some public use, when the title to the property condemned is vested in the public. Without attempting in this case to define the exact significance of the phrase "the person in charge of the public use," we are clear that it was not intended to cover the case of the temporary control of a railroad corporation by receivers. Within the meaning of the statute, a railroad corporation is still in charge of the public use, despite the fact that, for a brief period, the actual operation of the road is in the hands of receivers. The title to the railroad property is not in them, and the interest in the property condemned will not vest in them. But the corporation, under the law, will hold such property, as it holds all of its property, impressed with a public trust. We think that the following cases support our view, although not directly in point: Kip...