Duluth Terminal Ry. Co. v. City of Duluth (In re Duluth Terminal Ry. Co.)

• Decision Date: 17 February 1911
• Citation: 130 N.W. 18,113 Minn. 459
• Parties: In re DULUTH TERMINAL RY. CO. DULUTH TERMINAL RY. CO. v. CITY OF DULUTH et al.
• Court: Minnesota Supreme Court

113 Minn. 459

130 N.W. 18

In re DULUTH TERMINAL RY. CO.DULUTH TERMINAL RY. CO.

v.CITY OF DULUTH et al.

Supreme Court of Minnesota.

Feb. 17, 1911.

Appeal from District Court, St. Louis County; Homer B. Dibell, Judge.

Condemnation proceedings by the Duluth Terminal Railway Company against the City of Duluth and others. Judgment of dismissal, and petitioner appeals. Affirmed.

Syllabus by the Court

The city of Duluth, by ordinance, granted to the Duluth-Thunder Bay Railway Company a franchise on specified terms and conditions to construct a railway along Arthur avenue extended. Said company accepted the ordinance and is constructing the railway. Prior to the passage of this ordinance, but subsequent to its introduction in the city council, the petitioner herein instituted condemnation proceedings to acquire the right to construct a railway along the same portion of the street. The two rights being inconsistent, the franchise granted by the ordinance is the prior and superior right, and the city of Duluth had such an interest in the contract ordinance that it could introduce such grant in evidence, and base thereon an objection to the prosecution of the condemnation proceedings instituted by the petitioner; the Duluth-Thunder Bay Railway Company not objecting to such proceedings.

Chapter 74, Laws 1893, an amendment to section 1 of title 1 of chapter 34, Gen. St. 1866, provided that no corporation formed under this title shall have any right to construct, maintain, or operate upon or within any street of any city or village a railway of any kind, without first obtaining a franchise therefor from such city or village. This provision was in direct partial conflict with the provision of section 29 of said chapter, authorizing railway companies to acquire, by condemnation, the right to occupy any road, street, or alley for the necessary location of its railroad. To the extent of such conflict, section 29 was amended, and the right therein given a railway company to appropriate, through condemnation proceedings, such portion of highways as may be necessary for the construction of its road, without first obtaining a franchise, was limited to highways outside of cities and villages.

The amendment of 1893 applies to action taken thereafter, but with reference to such action the section is construed as if originally enacted in its amended form. It therefore limits the power conferred on all corporations organized thereunder, whether organized prior to or after 1893.

The placing of such limitation on the power of eminent domain, by an amendment to the general law conferring the power, did not impair the obligation of a contract or destroy any property right.

The provisions of the statutes referred to were carried forward into the Revision of 1905 under a different arrangement of and subdivision into sections. But by such rearrangement no alteration was apparently intended, and none was therefore made in the existing law.

A railway company, organized under title 1, c. 34, Gen. St. 1878, whether organized before or since 1893, is not authorized by the laws of this state, special reference being had to sections 2841 and 2916, Rev. Laws 1905, to acquire by condemnation proceedings the public easement in any portion of a street within a city or village to construct, maintain, or operate a railway of any kind along such street. A franchise must first be obtained from the city or village before such railway company can acquire such right to construct, maintain, or operate a railway along a street therein. J. A. Murphy and Baldwin, Baldwin & Dancer, for appellant.

Bert Fesler, for respondent.

SIMPSON, J.

This is a condemnation proceeding instituted by the Duluth Terminal Railway Company. The Duluth-Thunder Bay Railway Company condemned certain lands in the city of Duluth, and laid out a proposed railway line over such lands and along Arthur avenue extended, a street in the city of Duluth, connecting with the Interstate Bridge. Later an ordinance was introduced in the city council of the city of Duluth, granting to the said Duluth-Thunder Bay Railway Company, upon certain specified terms and conditions, the right and franchise to erect and maintian a single or double track railway upon a trestle from said Interstate Bridge, along said Arthur avenue extended, for a distance of some 600 feet, and thence along a designated route. This ordinance was in due course thereafter passed and approved January 13, 1909. The Duluth-Thunder Bay Railway Company duly accepted the franchise thereby granted, and agreed to perform all acts and things by the terms of the ordinance required of it, and thereupon commenced constructing the trestle provided for therein.

After this ordinance was introduced, and shortly before its passage, the Duluth Terminal Railway Company instituted these condemnation proceedings, and thereby seeks to acquire, among other lands, for use for the construction of an extension of its line of railway, the strip of land in Arthur avenue extended over which, by the ordinance referred to, the Duluth-Thunder Bay Railway Company was granted the right to construct and maintain a railway line. The Duluth Terminal Railway Company was organized in 1887 under title 1, c. 34, Gen. St. 1878. In 1888 the city of Duluth granted it a franchise to construct railway tracks on certain named streets for operating a line of railway and for furnishing trackage connections to other railroads. Beginning about two years thereafter it constructed several miles of terminal or connecting tracks, and has since maintained them, furnishing thereby trackage facilities for such other railway companies as desire to use the same. This proposed extension along Arthur avenue is desired to connect its present tracks with the tracks on the Interstate Bridge.

Among the terms contained in the ordinance granting the franchise to the Duluth-Thunder Bay Railway Company to construct and maintain tracks over Arthur avenue extended, connecting with the Interstate Bridge, was the requirement that all other railway companies should be permitted to use such tracks to their capacity, upon conditions substantially like those imposed by the ordinance upon the owning company. Thereby the elevated structure being built by the Duluth-Thunder Bay Railway Company is made to afford access to the Interstate Bridge for railway companies of much the same character and convenience which would be afforded if such tracks were constructed by the petitioner. It is entirely impracticable to have more than one such approach to the bridge along Arthur avenue extended.

Upon the hearing on the petition the court found, in addition to the facts above stated, that the public interest does not require the track proposed to be constructed by the petitioner, and directed the entry of judgment dismissing this proceeding. From such order the petitioner appeals. The city of Duluth appeared in the court below in opposition to the proposed condemnation, and appears in this court as respondent.

By the appeal, three questions are raised in this court for determination: (1) Did the city of Duluth have the right on the hearing to introduce evidence tending to show a prior right or easement of the Duluth-Thunder Bay Railway Company in Arthur avenue extended, and to interpose such prior easement as an objection to the taking of the same land by the appellant; the Duluth-Thunder Bay Railway Company not objecting? (2) Is the right of the Duluth-Thunder Bay Railway Company to the use of the strip of land in Arthur avenue extended for connecting railway tracks superior to the right herein sought to be acquired by the appellant? (3) Can the petitioner, by condemnation proceedings, acquire the right to construct, maintain, and operate its railway upon a street in the city of Duluth; it not having first obtained from said city a franchise conferring such right?

The fundamental question is the last one above stated, involving, as it does, the power of the appellant, under the laws of the state, to acquire the right here sought in Arthur avenue extended by condemnation proceedings. Section 2916, Rev. Laws 1905, is as follows: ‘When, in the location of any railroad, it becomes necessary to occupy any road, street, alley, or other public way, the municipal corporation or other public authority owning or having charge thereof and the railroad company may agree upon the manner, terms, and conditions in and upon which the same may be used or occupied, or such corporation may appropriate so much of the same as shall be necessary by condemnation proceedings under the right of eminent domain.’ This provision, in substantially its present form, was contained in the Revised Statutes of 1866. Under it the public easement in a street or highway, as well within cities and villages as in country districts, could be and was frequently acquired by condemnation proceedings. Kaiser v. Railroad Company, 22 Minn. 149;Campbell v. Stillwater, 32 Minn. 308, 20 N. W. 320,50 Am. Rep. 567;Harrington v. Railroad Company, 17 Minn. 215 (Gil. 188); Adams v. Railroad Co., 18 Minn. 260 (Gil. 236).

Section 2841, Rev. Laws 1905, is as follows: ‘Corporations may be organized for the construction, acquisition, maintenance, or operation of any work of internal improvement, including railways, street railways, telegraph and telephone lines, canals, slackwater, or other navigation, dams to create or improve a water supply or to furnish power for public use, and any work for supplying the public, by whatever means, with water, light, heat, or power, including all requisite subways, pipes, and other conduits. But no corporation so formed shall construct, maintain, or operate a railway of any kind, or any subway, pipe line or other conduit in or upon any street, alley, or other public ground of a city or village, without first obtaining from, and compensating said city or village for, a franchise conferring such right.’

The last part of ...