Crolley v. Minneapolis & St. Louis Railway Co.
| Citation | 16 N.W. 422,30 Minn. 541 |
| Parties | Ellen Crolley v. Minneapolis & St. Louis Railway Company |
| Decision Date | 05 July 1883 |
| Court | Supreme Court of Minnesota (US) |
Plaintiff brought this action in November, 1881, in the district court for Hennepin county, to recover possession of land in that county. The defendant answered March 1, 1882. On October 18, 1882, the defendant, on affidavit, moved for leave to serve an amended answer. The motion was opposed and, after argument before Lochren and Young, JJ., was denied, the court holding that "although the defendant's laches do not seem to be excused, still, if the amendment asked for appears to be in furtherance of justice, so that a denial of it will deprive defendant of a substantial meritorious defence, it will be proper to allow it on such terms as may be just," and also holding that the proposed amendment did not present such a defence. The defendant excepted to the ruling. Thereafter, and on November 3, 1882, the action was tried before Young, J., and a jury and plaintiff had a verdict. The defendant moved for a new trial on the ground () that the court erred in refusing to allow the proposed amended answer to stand as the answer in the cause and in refusing the defendant leave to amend. The motion was denied, and the defendant appealed.
Order reversed.
Levi Cray & Hart, for appellant.
Wilson & Lawrence, for respondent.
The action is in ejectment. The question raised here is on the denial by the court below of a motion by defendant for leave to serve an amended answer. Perhaps the court, in the proper exercise of its discretion, might have denied the motion on the ground of defendant's neglect to make it in time; but it did not deny it for that reason, but on the ground that the amended answer proposed did not set forth facts constituting a defence. As the decision was based on that ground, it is reviewable here.
The proposed amended answer set forth in substance that the Minneapolis & Northwestern Railway Company, a railroad corporation organized under the general laws of the state, for the purpose of constructing a railroad from the city of Minneapolis to the south shore of Lake Minnetonka, in 1879 ascertained, in the manner provided by law, and paid to plaintiff, the compensation for taking, and took, for a portion of its right of way for said railroad, the premises in question; and afterwards, in January, 1881, conveyed said right of way to defendant, which was authorized by Sp. Laws 1879, c. 185, to construct a railroad between the same points, and to purchase its right of way; and that defendant thereupon entered upon and constructed its railroad across the premises in question, and continues to operate its road across the same. On this answer three questions appear to be raised here: First, had the Northwestern Company authority to convey; and, if not, what was the effect of its conveyance to the St. Louis Company? Second, had the latter company capacity to receive and hold the right of way? Third, did the transaction between the two companies amount to an abandonment of the public use, so that the rights in the land acquired by the Northwestern Company became extinct?
Taking up the second question first, -- the power of the St. Louis Company, under the third section of Sp. Laws 1879, c. 185, -- the act authorizing it to construct and operate a branch line of railroad from Minneapolis to the south shore of Lake Minnetonka, gives that company ample power to acquire, "by purchase or by condemnation," "all necessary rights of way," etc., and to make with any other railroad company "such arrangements for the use of any portion of its tracks and road-beds as it may deem necessary." The question of the full capacity of that company to purchase and hold the right of way acquired by the Northwestern Company is determined by that act.
It is not so clear that power to convey the right of way existed in the Northwestern Company. An argument in favor of the power to assign the right may be made from the language of Gen. St 1878, c. 34, § 26, -- the law under which its right of way was acquired. That section provides what judgment shall be entered on the verdict or assessment ascertaining the damages to be paid to owners of lands taken, and that it shall declare that, upon payment of the verdict or assessment, the right "to take, use, and appropriate any property in controversy on said appeal, for the purposes aforesaid, shall, as against the parties interested in said verdict or assessment, be and remain in said corporation, their successors and assigns, forever." But the case does not turn on the construction of that statute; for whether the Northwestern Company could convey, or the St. Louis Company could receive the property, does not concern this plaintiff, unless it amounts to an abandonment. She had no interest in the right of way. So long as it continued to exist, it was immaterial to...
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