City of Grafton v. St. Paul, Minneapolis & Manitoba Ry. Co.

• Decision Date: 09 August 1907
• Court: North Dakota Supreme Court

113 N.W. 598

16 N.D. 313

CITY OF GRAFTON, A CORPORATION, v. ST. PAUL, MINNEAPOLIS AND MANITOBA RAILWAY COMPANY, A CORPORATION, AND GREAT NORTHERN RAILWAY COMPANY, A CORPORATION

Supreme Court of North Dakota

August 9, 1907

Rehearing denied Oct. 26, 1907.

Appeal from District Court, Walsh county; Kneeshaw, J.

Action by the city of Grafton against the St. Paul, Minneapolis & Manitoba Railway Company and others. Judgment for plaintiff and defendants appeal.

Affirmed.

Murphy & Duggan, for appellants.

The necessity of condemnation is determined by the courts. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570.

Compensation must be made for grading and planking required by the improvement. State v. Shardlow, 46 N.W. 74; In re Opening First St., 26 N.W. 159; State v. District Court, 44 N.W. 7; Chicago Ry. Co. v. Hough, 28 N.W. 532; In re City Grand Rapids v. Grand Rapids Ry Co., 33 N.W. 15; Commissioners of Parks v. Michigan Cent. Ry. Co., 51 N.W. 447 and 934; Commissioners of Parks v. Detroit, etc., Ry. Co., 52 N.W. 1083; City of Grand Rapids v. Bennett, 64 N.W. 585; People v. Lake Shore Ry. Co., 17 N.W. 841; Village of Plymouth v. Pere Marquette Ry. Co., 102 N.W. 947.

Gray & Casey, for respondents.

The necessity for a public improvement is a political, not a judicial question. Los Angeles v. Waldron, 3 P. 890; 1 P. 883; Ill. Cen. R. Co. v. City of Chicago, 30 N.E. 1044; Ill. Cent. Ry. Co. v. City of Chicago, 28 N.E. 740; Chicago & N.W. Ry. Co. v. City of Chicago, 29 N.E. 1109; Chicago & N.W. Ry. Co. v. City of Morrison, 63 N.E. 96; Chicago & N.W. Ry. Co. v. Chicago, 37 N.E. 842; Pittsburg, etc., Ry. Co. v. Sanitary Dist., 75 N.E. 892; Lynch v. Forbes, 37 N.E. 437; Bennett v. City of Marion, 76 N.W. 844; Barrett v. Kemp, 59 N.W. 76; Knoblauch v. City of Minneapolis, 57 N.W. 928; Fairchild v. City of St. Paul, 49 N.W. 325; Warner v. Town of Gunnison, 31 P. 238.

The measure of damage is without reference to expenditures to comply with police regulations in regard to street crossings. Chicago & N.W. Ry. Co. v. City of Chicago, 29 N.E. 1109; Chicago & N.W. Ry. Co. v. Cicero, 41 N.E. 640; Illinois Cent. Ry. Co. v. City of Chicago, 48 N.E. 492; Illinois Cent. Ry. Co. v. Town of Normal, 51 N.E. 781; Chicago, B. & Q. Ry. Co. v. Chicago, 37 N.E. 78; Chicago & A. R. Co. v. City of Pontiac, 48 N.E. 485; City of Albia v. C. B. & Q. Ry. Co., 71 N.W. 541; People v. B. & A. Ry. Co., 70 N.Y. 569; Albany N. R. Co. v. Brownell, 24 N.Y. 325.

City ordinance book, properly identified, is prima facie evidence of the existence of the ordinance. 17 Cyc. 298; Metropolitan St. R. Co. v. Johnson, 16 S.E. 49; Mayer v. Swink, 16 S.W. 76; Eichenlaub v. City of St. Joseph, 21 S.W. 8; Merced Co. v. Fleming, 43 P. 392; San Diego v. Siefert, 32 P. 644; Linsay v. City of Chicago, 3 N.E. 443; Prell v. McDonald, 7 Kan. 426.

Plaintiff's complaint was sufficient. City of Lidgerwood v. Michalek, 12 N.D. 348, 97 N.W. 541; Cal. Southern Ry. Co. v. Southern P., 7 P. 123; City of Los Angeles v. Waldron, 3 P. 890.

OPINION

FISK, J.

The respondent, the city of Grafton, brought this action against the appellant in the district court of Walsh county; the object being to condemn for street purposes a certain strip of land across appellants' right of way within the corporate limits of respondent city. After plaintiff rested its case in chief, defendants moved for a dismissal of the action upon the ground that plaintiff had totally failed to show any public necessity for condemning the property in question, which motion was denied. And at the close of all the testimony they moved for a dismissal of the action upon the same ground, which motion was denied; the court holding that plaintiff was entitled to have said property condemned as prayed for. Thereupon the trial court, on motion of the plaintiff, directed the jury to return a verdict in defendants' favor for nominal damages merely, and from an order denying defendants' motion for a new trial this appeal is taken.

The defendants, by their answer, attempt to put in issue the question of the necessity for the opening of said street across such right of way. They also allege that the damage which they will suffer by the opening of such street will be the sum of $ 500, and that the property sought to be condemned is of the value of $ 500. Plaintiff introduced in evidence a plat of that portion of the city of Grafton surrounding the point of the proposed crossing. It also introduced a record of an ordinance passed by its city council prior to the commencement of the action, purporting to open Fourth street in said city across defendants' right of way, being the crossing sought to be condemned. Numerous errors are alleged by appellants as grounds for a reversal of the order appealed from, but they relate principally to the questions of the necessity for the opening of said street crossing and to the damages to which defendants are entitled in case the street is opened. Appellants assert that there is no sufficient evidence in the case to establish that any necessity exists for the condemnation of the property in question. Appellant's contention, in brief, is that the power to determine the necessity for taking property under the eminent domain statute is in all cases vested in the courts, and that the action of the city council in passing the ordinance above mentioned was incompetent to prove the issue as to the necessity for the taking of the property sought to be condemned. It is respondent's contention that the power of determining the necessity for opening, laying out, and extending streets and alleys within a municipality has been expressly delegated by laws to municipalities, and that "when a city or town decides for itself--as it may do--that a street is desirable it is not bound to prove that such street is necessary, but only that the taking of the property it seeks to condemn is necessary for laying out or extending such street or alley. That when it shows that the use to which the property is to be adapted is a public use, the inquiry on such point is closed." And it relies upon subdivision 3, section 7575, and subdivision 68, section 2678, Rev. Codes 1905. We are convinced that the question of the expediency or public necessity for extending this street across defendants' right of way was a question exclusively for the city council to determine, and that its determination is conclusive. It is, of course, an entirely different question as to whether the property sought to be condemned is necessary for the purpose of extending such street. This question is one exclusively for the court to determine in the condemnation proceedings.

If the distinction between the necessity for the exercise of the power and the necessity for the taking of the specific property sought to be condemned is kept in mind, but little difficulty will be encountered in properly understanding the correct rules as enunciated by the authorities. The former question is usually a political or legislative question, while the latter is always a judicial question, or one in which the person's or corporation's decision is subject to review by the courts. Our statute on eminent domain, being chapter 36 of the Code of Civil Procedure (Rev. Codes 1905), is very similar in its provisions to those found in the Code of Civil Procedure of California, and was, no doubt, borrowed from that state. The Supreme Court of California construed such statute in City of Pasadena v. Stimson, 27 P. 604, 91 Cal. 238, and the construction contended for by respondent was adopted. We quote: "The legislature has defined the public uses for which private property may be taken, and, among others, 'sewerage of any incorporated city * * * or of any village or town.' * * * When a city or town decides for itself, as it may do, that a sewer is desirable, it is not bound to prove that such sewer is necessary, but only that the taking of the property it seeks to condemn is necessary for the construction of the sewer. When it shows that the use to which the property is to be applied is a public use (and that is shown by the statute in this case), the inquiry on that head is closed." Again, in Los Angeles v. Waldron, 3 P. 890, 65 Cal. 283, that court, in speaking upon the question under consideration here, took occasion to say: "In a proceeding to condemn property for the use of a city, it is not necessary to allege that the property sought to be condemned was necessary for some municipal or public use. The question of the necessity existing at the time of the passage of an ordinance therefore was for the council to determine, and its determination is made manifest by the passage of the ordinance." See, also, City of Los Angeles v. Waldron (Cal.) 1 P. 883, and San Francisco Ry. Co. v. Leviston, 66 P. 473, 134 Cal. 412; Santa Ana v. Harlin, 99 Cal. 538, 34 P. 224.

Counsel for appellants cite and rely upon Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570. In that case, Judge Corliss, in writing the opinion, used some language which might be construed, when standing alone, as supporting appellants' contention. He said: "In this state the legislature has seen fit to take it out of the power of any person or corporation to settle the question of necessity, and to trust the determination of that issue to the judicial branch of the government." This broad statement of the rule was no doubt correct, as applied to that case, which was an action by a railway company to condemn certain property for the purpose of changing the course of a stream; but it is not applicable to a case such as the one at bar, where a municipality seeks to extend a street across a railroad right of way. In the case cited, the decision was based upon section 5959, Rev. Codes 1895, which is identical with section 1241 of...