Greve v. First Division of the St. Paul & Pacific Railroad Company
| Decision Date | 12 June 1879 |
| Citation | 1 N.W. 816,26 Minn. 66 |
| Parties | Mary Greve and Husband v. First Division of the St. Paul & Pacific Railroad Company |
| Court | Minnesota Supreme Court |
The defendant having instituted proceedings to condemn certain land of the plaintiff Mary Greve, over which it had long before constructed and operated its railroad, she and her husband appealed to the district court for Ramsey county where the case was tried before Wilkin, J., and a jury. The plaintiffs requested the court to instruct the jury that the roadbed, ties and iron placed on the land in question by the defendant and remaining annexed thereto when the report of the commissioners was filed, were part of the realty, and belonged to the owner of the land; and that allowance must be made for the value of the land as it then stood, including such grading and improvements. The court refused so to charge, and the plaintiffs excepted. They bring this appeal from an order denying their motion for a new trial.
Order affirmed.
J. B Brisbin and Wm. P. Warner, for appellants, cited Ford v County Com'rs, 64 Me. 408; Central Bridge v City of Lowell, 15 Gray, 106; San Francisco, etc., R. Co. v. Mahoney, 29 Cal. 112; Railroad Co. v. Owen, 8 Kan. 409; Dearborn v. Railroad Co., 17 N. H. (4 Foster,) 179; Robbins v. Railroad Co., 6 Wis. 636; Driver v. Railroad Co., 32 Wis. 569; Graham v. Comerville, etc., R. Co., 36 Ind. 463; In matter of Long Island R. Co., 6 N.Y.S. 298; Davis v. San Lorenzo R. Co., 47 Cal. 517; U. S. v. Certain Land in Monterey Co., 47 Cal. 515.
Geo. L. & Chas. E. Otis, for respondent.
OPINION
It appears that, prior to instituting any proceedings to ascertain and pay the compensation to be paid for taking the land in controversy, the defendant, the railroad company, constructed and was operating its road across such land. It instituted such proceedings in 1870, and in those proceedings the question arises, is the owner entitled to have the amount which the company must pay for the right of way estimated upon the basis of the value of the land, including the road-bed, ties, rails, etc., laid on it by the company, or of the value of the land without those improvements?
The question is new in this court. The cases in this court, referred to by the plaintiff, have very little bearing upon it. Gray v. First Div., etc., R. Co., 13 Minn. 315, and Hursh v. First Div., etc., R. Co., 17 Minn. 439, and Warren v. First Div., etc., R. Co., 21 Minn. 424, hold that until compensation is made to the owner, a railroad company has no right to take possession of land and construct its road on it; and the cases of Hursh and Warren hold that, in the case of this company, the time of filing the report by the commissioners is the time which is to be taken for the purpose of fixing the compensation. In Brisbine v. St. Paul & Sioux City R. Co., 23 Minn. 114, Brisbine was a riparian owner on the Mississippi river. The city of St. Paul for a street, and the railroad company for its track, had filled in front of his lot into the river, raising the bed of the river above the surface of the water, and on this raised land the company had laid its track. The company contended here that Brisbine was not entitled to any compensation for this raised land. The court held that he was. The proposition that the value which the city or company had added to the land, by raising it, should be excluded in estimating the compensation, was not made in nor passed upon by this court.
In this case, the company, having entered upon the land without making compensation, and, so far as the case shows, without the consent of the owner, was (technically, at least,) a trespasser; and I have no doubt that where a trespasser affixes anything to the soil, it becomes, in strict law, a part of the soil, and belongs to the owner of it; and if the value of the land taken, at the time when taken, is to be the sole measure of compensation for the taking, this would be conclusive of the plaintiffs' right to have the value of these ties rails, etc., included. But while the value of the land taken is a very important, and in many cases the controlling, element, it is not, as has been frequently held by this court, the sole consideration in arriving at the amount of compensation. Thus, in Winona & St. Peter R. Co. v. Denman, 10 Minn. 208, (267,) it was held that where the land taken was part of a larger parcel used as a farm, the commissioners were not confined to the damage done to, or the value of, the land actually taken, but might inquire into the effect of the taking upon the whole tract; and also that the expense to the owner of fencing, rendered necessary by the construction of the road, is a proper element of damage. In Winona & St. Peter R. Co. v. Waldron, 11 Minn. 392, (515,) it was held that in a like case special benefits to the part not taken were to be deducted from the damage caused by the taking of the part...
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