Hursh v. First Div. St. Paul & Pac. R. Co.

• Decision Date: 01 January 1872
• Parties: JACOB HURSH v. FIRST DIV. ST. PAUL & PAC. R. CO.
• Court: Minnesota Supreme Court

17 Minn. 417

JACOB HURSH

v. FIRST DIV. ST. PAUL & PAC. R. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Hennepin county, refusing leave to file a supplemental answer.

The action was to recover damages for the entering upon, November 1, 1866, and constructing and operating a railroad over a strip of land of plaintiff, and for an injunction. The answer avers, among other things, its right to take private property under its charter and various acts of the legislature, pleaded in the answer, and that commissioners have been appointed, and are proceeding with all convenient speed, to appraise and award the value of the land of plaintiff so entered upon, but that they have not yet made their award.

Afterwards defendant moved for leave to file a supplemental answer, alleging that since the service of the answer the commissioners have duly made and filed their award, in which they appraised the value of the strip taken as of November 1, 1866, and awarded the same to plaintiff, with interest since that date, and that defendant is ready to pay plaintiff said award, and offers to bring the same, with interest since the date of the award, into court, and to pay the costs of the action.

The motion was denied.

Bigelow & Clark, for appellant.

Lochren & McNair, for respondent.

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RIPLEY, C. J.

The motion for leave to file the supplemental answer was rightly denied.

By section 3 of the defendant's charter, (Laws 1857, Ex. Sess. 3,) it may enter upon lands for the purpose of making surveys, and for the right of way, and may appropriate to its sole use and control, for its purposes as a railroad, land not exceeding 200 feet in width, throughout its line, and enter upon and take possession of and use any lands beyond that width for depot, station grounds, and houses, and various other purposes specified and necessarily incident to the complete construction, operation, and preservation of the road; and lands belonging to individuals may be taken and appropriated for the purposes aforesaid, and shall be valued and paid for as hereinafter provided.

At this point, and in the outset, and on the most cursory examination of this section, it is obvious that whatever be the precise meaning of the words, "and for the right of way," it is not the right to enter on any lands whatever therefor, and to make surveys which is to be valued and paid for; but the land of individuals or corporations, which, by the succeeding clauses, is to be taken and appropriated to the defendant's use, to the width 200 feet, throughout its line, and in some localities to a greater width.

By section 13 it is provided that whenever the line of the road * * * shall be located and its route determined, it may apply for the appointment of commissioners "to appraise and award the value of all lands belonging to any private person on its line, which it shall have entered upon, possessed, occupied, or used, or which it may thereafter enter upon, take, possess, occupy, or use for any of the purposes for which, by this act, the said company is authorized to enter upon, take, possess, occupy, or use lands."

No particular land need be designated in the application, nor need the corporation have determined what particular land it will appropriate, either within the 200 hundred feet or beyond it. All that is required is that it shall have located its line and determined its route. Wilkin v. First Div. St. Paul & P. R. Co. 16 Minn. 271, (Gil. 244.)

The commissioners are to have cognizance of all cases arising on the line of the road, or on so much thereof as shall be designated, and in each case shall examine the premises separately, and shall separately make an appraisement and award of the value thereof at the time when it was so entered upon and taken, or on final judgment rendered on appeal, and not before, it is the duty of the company to pay to the land-owner the amount so awarded or adjudged; and on payment or tender, an absolute estate in fee-simple in such lands shall become vested in the company, and the said company shall have full power and authority, after entering upon and taking any such lands, to have, hold, possess, occupy, use, and enjoy the same for any of the lawful purposes of said company from the time of such entry and taking until the proceedings contemplated by the act shall have been finally determined, and until the said company shall have refused, after demand made, to pay the value of said land so ascertained as aforesaid; and shall not during such time, nor until such refusal, be distributed in such possession or occupancy, use or enjoyment, by any proceedings either in law or equity.

The value of the land is to be appraised at the time it was entered upon and taken, and the first question to be considered is as to what this means. The supplemental answer alleges that the commissioners have awarded the value of the land as it was November 1, 1866, with interest since, to the date of the award. On the said first of November it alleges that it was entered upon for railroad purposes. This, in strictness of pleading, must be taken to be an allegation that it was then first entered on for such purposes. Is this synonymous with the entry and taking at which the value is to be appraised? Clearly it cannot be. An entry for survey and location of the line would assuredly be an entry for railroad purposes; yet, as we have seen, such an entry would not be a taking of land to be valued and paid for.

This consideration, of itself, disposes of the case; for an award of the value of the land at a time when it had not been taken, as it would be authorized, would be wholly irrelevant.

Nor on this construction of the supplemental answer would it be necessary for us to determine when the land is to be deemed to be entered upon and taken. It is enough that a time subsequent to an entry thereon for survey and location is plainly intended by the act.

It may be said, however, that taking the answer and supplemental answer together, it is fairly to be intended that the entry upon the strip of land 139 feet wide, described in the complaint and answer, for railroad purposes, and which is the same entry referred to in the supplemental answer, is a different and subsequent entry from any entry that it would be requisite to make on the northerly part of plaintiff's land for the survey, location, and marking of the line of the road on the ground described in the answer.

If this construction be admitted, such entry for railroad purposes must be deemed to have been for the purpose of further prosecuting the contemplated enterprise of constructing and operating a railroad upon the line already marked out, and the question recurs whether an...