Chicago Great Western Ry. Co. v. Jesse

• Decision Date: 29 March 1957
• Docket Number: No. 37030,37030
• Citation: 82 N.W.2d 227,249 Minn. 324
• Parties: CHICAGO GREAT WESTERN RAILWAY COMPANY (by the Board of Directors thereof), Respondent, v. Edward JESSE and Mary H. Jesse, his wife; Alfred P. Robersen and Adeline Robersen, his wife, Relators, Marion Wallace Simpson et al., Respondents-below.
• Court: Minnesota Supreme Court

Page 227

82 N.W.2d 227

249 Minn. 324

CHICAGO GREAT WESTERN RAILWAY COMPANY (by the Board of Directors thereof), Respondent, v. Edward JESSE and Mary H. Jesse, his wife; Alfred P. Robersen and Adeline Robersen, his wife, Relators, Marion Wallace Simpson et al., Respondents-below.

No. 37030.

Supreme Court of Minnesota.

March 29, 1957.

Syllabus by the Court

1. It is well settled in this jurisdiction that in a condemnation proceeding it is not necessary to show an absolute or indispensable necessity but only that the proposed taking is reasonably necessary or convenient for the furtherance of the end in view.

Use of a railroad track serving industries is a public use, although not precisely of the same quality as that which pertains to an extension of the main line of a railroad, if the track is a part of a railroad system which the public may use on equal terms as of right and is subject to governmental regulations, whether a few or many are accommodated by its operation.

Held, under the facts and circumstances of this case, the land the railroad company seeks to condemn is necessary and for a public use.

2. Under 49 U.S.C.A. § 1, if the purpose and effect of any railroad trackage is to extend substantially the line of a carrier into new territory, the proposed trackage constitutes an extension of the railroad. Held, under the facts and circumstances of this case, the proposed trackage for which the property in question is being condemned is a spur or industrial track and not an extension of its main line.

3. Held, under the facts and circumstances of this case, the proposed trackage is not a branch or extension within the contemplation of M.S.A. §§ 222.28 and 222.32.

Affirmed.

William W. Essling, St. Paul, for relators.

Grannis & Grannis, South St. Paul, for respondent.

FRANK T. GALLAGHER, Justice.

Certiorari to review an order of the District Court of Dakota County.

On April 6, 1956, the Chicago Great Western Railway Company filed a petition in the district court requesting an order of the court allowing them to acquire certain interests in the property of the relators, Mr. and Mrs. Jesse and Mr. and Mrs. Robersen. This petition, among other things, alleged that the main line of their railroad runs generally in a northerly and southerly direction from Minneapolis and St. Paul to Kansas City, Missouri, and Chicago, Illinois; that it runs through Dakota County; that the Iowa Development Company, which is a wholly owned subsidiary of the petitioner, owned 4,000 acres of land in Rosemount and Inver Grove Townships, Dakota County, Minnesota; that this land is located between the petitioner's right-of-way and the Mississippi River, with a part of it to the west of its right-of-way; that two large industries have already located on this property; and that within the next ten years the remainder of the property will be purchased by large industrial enterprises. It next alleged that in order to give adequate service to the two industries already located on the property and to other industries which might in the future locate in this area it is necessary for it to construct a line of railroad track which would eventually encircle a large part of the 4,000 acres; that a part of this track has already been constructed; and that it will be necessary to acquire a further strip of land in Rosemount and Inver Grove Townships approximately 200 feet in width. It then alleged that it is thus necessary to acquire a certain portion of the property owned by the relators, with the right to enter upon this land to survey, construct, operate, and maintain railroad tracks, and to repair, rebuild, replace, patrol, and to acquire the right to trim and remove all trees or branches of trees on the property they seek to condemn; they further asked for the right to remove gravel, dirt, and earth from this land for the purpose of filling and grading the line of the railroad. It also alleged that they have been unable to purchase the necessary interest.

A hearing on this petition was commenced on June 15, 1956, and on July 12 following the hearing, the district court issued an order in favor of the petitioner. The court found, among other things, that the allegations of the petitioner had been fully proved and that it was necessary and convenient for the use, operation, ane enjoyment of petitioner railroad and the use thereof by the public that an easement estate in the lands set forth in the petition as amended be acquired by condemnation. The court then concluded accordingly and appointed appraisers to ascertain and report the amount of damages which would be sustained by the relators.

On July 27, 1956, upon an application of the relators this court issued a writ of certiorari to the District Court of Dakota County for the purpose of reviewing the district court's order in favor of the petitioner.

Three issues are raised in this court by the relators pursuant to their contention that the district court's order should be vacated, set aside, and in all respects discharged. These issues are as follows:

(1) Whether the district court's finding of the public necessity is sustained by the evidence in this case; (2) Whether the district court lacked jurisdiction in that the petitioner failed to comply with certain requirements, 49 U.S.C.A. § 1(18, 19, 20, 21): and

(3) Whether the district court lacked jurisdiction due to the failure of the petitioner to meet certain requirements of M.S.A. §§ 222.28 and 222.32.

1. With respect to the first issue the relators contend that the railroad has failed to sustain its burden of proving that the land they seek to condemn is necessary or convenient. They cite Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N.W. 405, 5 L.R.A.,N.S., 638, to the effect that in this state the court is required to determine whether the proposed public use of the property sought to be condemned will be for the public benefit. Under this rule the relators contend that the condemnation sought in the case at bar is not for a public use.

A review of the evidence in this case shows the following situation: The railroad's main line runs in a general northerly and southerly direction through Dakota County in the townships of Inver Grove and Rosemount, these being the townships where the property in question is located. The railroad intends to run what is known as a large industrial belt line from the main track in an easterly direction; from there to loop through a large area of land in the southerly part of this area; then to loop back in a westerly direction to connect with the main track again. The belt line itself when finished will be about 7 1/2 miles long and will cost approximately $60,000 per mile.

A good portion of the property through which the belt line is to run is owned by the Iowa Development Company, a wholly owned subsidiary of the petitioner railroad. The evidence further shows that about 4 3/4 miles of the proposed belt line has already been constructed. A part of this construction runs easterly from where it leaves the main line at the northerly end of the area and a part runs easterly from the main line at the southerly end. The proposed new trackage will connect those two 'dead end' lines into a continuous 7 1/2-mile belt line. The record also shows that two large industries have located in this area and are now making use of the portions of the belt line already constructed.

In order to complete the belt line in its proposed location the railroad company seeks to condemn a right-of-way easement over portions of the property owned by the relators. There is testimony in the record that the purpose of this belt line is to serve industry and facilitate the switching of cars and that it would be used in shipping freight that would enter interstate commerce. No contention seems to be made that the proposed trackage has any other purpose than to move materials in and out of this area to the main track. There is also testimony that the proposed route for the belt line is the most practical and feasible from an engineering and construction standpoint and that, when the belt line has been completed, an alternative route to the main track will be provided for the two industries already using the constructed portions as spur tracks.

There was testimony that the area in and around this belt line is building up; that industry will be moving into the area after the belt line is completed; and that these areas will be better served because the belt line will provide an entry into the area from the north as well as from the south. It is further stated in the record that the railroad company is considering applications at the present time from industries which desire to move into the area and that there would be no other economic and feasible routes to operate this large industrial area without a complete loop. There is also evidence that it is advantageous to put a continuous circle of trackage to properly serve all the industries that are located or might locate in this area.

M.S.A. § 222.27 gives every foreign and domestic railroad corporation the power to acquire, by purchase or condemnation, among other things, spur and side tracks and grounds for all other structures necessary or convenient for the use, operation, or enjoyment of the road. A common carrier serves both the public and itself. It has its public and its private functions. The public part is the exercise of its franchise for the accommodation of public travel, and whatever is necessary to the exercise of the franchise is for the benefit of the public. 2 Nichols, Eminent Domain (3 ed.) § 7.5211. The fundamental idea upon which the right of eminent domain rests is public necessity. In re St. Paul & N.P. Ry. Co., 37 Minn. 164, 33 N.W. 701.

It may be conceded, as contended by the relators, that there...