In re Proceedings by the St. Paul & N. P. R. Co. to Acquire for Its Uses R. Crossing in Said Cnty.

• Decision Date: 28 June 1887
• Citation: 37 Minn. 164,33 N.W. 701
• Court: Minnesota Supreme Court
• Parties: IN RE PROCEEDINGS BY THE ST. PAUL & N. P. R. CO. TO ACQUIRE FOR ITS USES A CERTAIN RAILROAD CROSSING IN SAID COUNTY.

37 Minn. 164

33 N.W. 701

IN RE PROCEEDINGS BY THE ST. PAUL & N. P. R. CO. TO ACQUIRE FOR ITS USES A CERTAIN RAILROAD CROSSING IN SAID COUNTY.

Supreme Court of Minnesota.

June 28, 1887.

(Syllabus by the Court.)

Under Gen. St. 1878, c. 34, § 47, (as amended by Gen. Laws 1879, c. 35, § 3,) a railway company has no absolute right, at its own mere election, to a crossing over the railroad of another company. The court to whom the application for the appointment of commissioners is made, is first to determine whether the crossing sought is necessary and required by public interests.

The provisions of section 17, in that regard, are applicable to proceedings under section 47.

Appeal from district court, Ramsey county.

D. A. Secombe, for St. Paul & N. P. R. Co., petitioner.

R. B. Galusha and C. E. Flandreau, (Geo. B. Young, of counsel,) for St. Paul, M. & M. R. Co., respondent.

MITCHELL, J.

This appeal was taken from an order denying an application of the St. Paul & Northern Pacific Railway Company, pursuant to Gen. St. 1878, c. 34, § 47, as amended by Gen. Laws 1879, c. 35, § 3, for the appointment of commissioners to assess and determine the amount of compensation to be made to the St. Paul, Minneapolis & Manitoba Railway Company for a crossing of the railway tracks of the latter company by the railroad of the petitioner at a point in the city of St. Paul about 200 feet southerly of Seventh street.

The only point raised or urged by appellant is that, under the statute cited, it had an absolute right to make the crossing, conditional only upon payment of compensation; that the fact that it elected to make the crossing was conclusive evidence of its necessity; and that the court had no power to consider whether public interest required it, and no discretion except to prescribe the location and manner of making the crossing in case the two companies could not agree. This is a bold claim of absolute power, to which the petitioner, in order to maintain its contention, must show no doubtful right. The power of eminent domain may doubtless be delegated to corporations, to be exercised in such manner and under such restrictions as the legislature may determine; yet it is a prerogative of sovereignty, and its exercise by corporations is a special privilege against common right. Therefore any corporation claiming to exercise it suo arbitrio, exempt from any judicial determination as to the necessity or propriety of such exercise, must show a clear and unambiguous grant from the legislature of the right claimed. The foundation idea upon which the right of eminent domain rests is public necessity; and, while the legislature is the absolute judge of the existence of such necessity, yet the delegation of the power to any corporation to decide for itself when this necessity exists is so dangerous, and so in conflict with all the previous policy of the state, that it would require very clear language to justify a court in holding that the legislature intended to give one railroad the absolute right, at its mere election, to cross another railroad, although such crossing might not only serve no useful purpose, but also destroy the public usefulness of the road crossed, by jeopardizing the lives of travelers and operatives. Even where special charters make railway companies the judges, in their own cases, as to what property is necessary to be taken for the purposes of their roads, courts of equity have often interfered, at the suit of private persons, to restrain the corporation from an abuse of their power. In this state, in the case of railway companies organized under special charters which gave them very extensive powers to take private property, and which contained no provision for any determination by the court, in the condemnation proceedings, of the question of the necessity of the taking, this court has very clearly intimated that, if they attempted to abuse their powers, the companies would be subject to the control of the courts. Wilkin v. First Division St. P. & P. Ry. Co., 16 Minn. 271, (Gil. 244;)Weir v. St. Paul, S. & T. F. Ry. Co., 18 Minn. 167, (Gil. 139.)

In 1872, and again in 1879, Gen. St. c. 34, § 17, was so amended as to make the questions whether the public interests required the railroad to be built at all, and whether the lands proposed to be taken were required and necessary, judicial ones to be determined by the court. In view of these considerations, we repeat that it would require unequivocal language to satisfy us that there had been so complete a relaxation of this policy as to leave the matter of making a railway crossing to the uncontrolled will of the corporation desiring to make it. But a consideration of the language of the entire section (47) as amended, and a comparison of it with other legislation in pari materia, leads us to the conclusion that no such absolute right is given, but that in proceedings under this section the court has the same powers as in any other case of the proposed exercise of the right of eminent domain under chapter 34, and, as was suggested in State v. District Court, 29 N. W. Rep. 60, is first to determine whether the crossing sought is necessary and required by public interest.

The section amended (47) gives to a railroad company power to appropriate so much of any street as may be necessary for the purposes of its road. Gen. St. 1866, c. 34, in which this section is found, contained no express provisions for any determination by the court as to the necessity of the appropriation in any case. And, as the route of the road is left to the company, the same interpretation on which appellant insists would give any railroad company the absolute right to lay its line on any street in any city without control by the court as to its propriety or necessity. Section 47 does not in terms provide how the right granted shall be exercised, except that, if the companies cannot agree upon the...