Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co.

• Citation: 51 Minn. 304,53 N.W. 639
• Parties: MINNEAPOLIS MILL CO. v MINNEAPOLIS & ST. L. RY. CO.
• Decision Date: 17 November 1892
• Court: Supreme Court of Minnesota (US)

51 Minn. 304

53 N.W. 639

MINNEAPOLIS MILL CO.vMINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

Nov. 17, 1892.

(Syllabus by the Court.)

1. Evidence held insufficient to justify a finding that the defendant entered and built its tracks upon the land of the plaintiff under an agreement or understanding that the plaintiff would give it the permanent possession of and right of way over such land for such purposes.

2. Held, also, that the evidence failed to establish facts sufficient to create an estoppel against plaintiff from asserting the right to the possession of the land; that at most it proved merely an entry and occupancy by defendant under a license.

3. A mere license, not subsidiary to a valid grant, may be revoked at pleasure, and does not create or transfer any interest in the land, even though granted for a valuable consideration, and for a purpose which involves the expenditure of money upon the faith of it; and the mere fact that the licensor, without objection, permits the licensee to expend money on the land upon the faith of the license, will not operate as an estoppel.

4. The testimony of a witness, given on a former trial, and which has been taken down in full by an official court stenographer, is admissible in evidence upon another trial of the same issues between the same parties upon its appearing that the witness is a nonresident, and not within the jurisdiction of the court.

Appeal from district court, Hennepin county; LOCHREN, Judge.

Ejectment by the Minneapolis Mill Company against the Minneapolis & St. Louis Railway Company. Findings for defendant. A motion for a new trial was denied, and plaintiff appeals. Reversed.

Flamery & Cooke, for appellant.

Albert E. Clarke and Wilbur F. Booth, for respondent.

MITCHELL, J.

This action, which is one in ejectment, was before this court on a former appeal. 46 Minn. 330,48 N. W. Rep. 1132. On the first trial the district court held that the defendant had acquired title by dedication to a public use. On the last trial it held, in substance, that it had acquired title through a parol contract or agreement with the plaintiff. The principal question is whether this finding was justified by the evidence.

It is conceded that the title to the land was originally in the plaintiff, and, of course, still is, unless it has in some way transferred it to the defendant. It is not pretended that the plaintiff ever executed any conveyance or any written agreement to convey to defendant; hence, if the title has ever passed, it must have been by virtue of matters entirely in pais. The court finds that during the year 1870, and for more than 10 years thereafter, and untillong after the defendant had taken possession of all the lands described in the complaint, and constructed its tracks thereon, William D. Washburn, C. C. Washburn, and Dorillus Morrison owned substantially all the capital stock of the plaintiff company, and, as its officers and directors, controlled its property, business, and affairs; that during the same time the plaintiff, its grantees and lessees, owned nearly all the water power and mill sites upon and along the west bank of the river at St. Anthony Falls; that during all of this time the two Washburns were stockholders and directors of the defendant company, and W. D. Washburn, as vice president or president of the defendant, had on its behalf the management, control, and direction of the location and construction of all its tracks, side tracks, and spur tracks upon the land in controversy, and upon or connected with the property of the plaintiff and the milling district in the city of Minneapolis. We assume that thus far the findings are supported by the evidence. The court then finds: “That during the same time the said plaintiff, by its said directors, for the purpose of increasing the value and availability for use of plaintiff's said property, and of increasing and hastening the development of manufacturing industries thereon, induced and procured the defendant to build and construct its railroad tracks upon the land described in plaintiff's complaint, and upon the agreement and understanding that, in consideration of the special benefits and advantages to plaintiff from such construction of defendant's tracks at that place, plaintiff would give to the defendant the possession and right of way for such tracks over such land of plaintiff, to be occupied by such tracks, as was not included in the deed of plaintiff to the defendant of May 31, 1871. That, pursuant to such agreement and understanding, and at the instance of the Washburns, and with the full assent and knowledge of Morrison and all other directors and officers of the plaintiff, and for the special benefit and advantage of the plaintiff, as well as for the use and advantage of the defendant, the defendant, at its own cost, built and constructed permanently all its tracks described in the complaint, and entered into the possession thereof, and has ever since occupied the same as part of its railroad connecting its main line with its yard on the east of said land in dispute, and also connecting said main line and yard with its tracks to mills upon plaintiff's milling property; and that defendant's railroad tracks upon said land in dispute have greatly facilitated the carrying on of milling and manufacturing on plaintiff's property, and greatly benefited and increased the value of such property. That upon the taking by said defendant at plaintiff's request, and constructing thereon for plaintiff's benefit, but at its own cost, the railroad tracks of defendant, the plaintiff waived any further or other compensation for the land so taken than the special benefits to plaintiff's remaining property resulting from the construction and permanent use in that place of such railroad tracks. That, besides the cost of construction of said tracks, defendant has since, to the knowledge of plaintiff's directors and officers, expended large sums of money in repairs and replacement of such tracks and in construction of bridges for such tracks over said avenue, [10th avenue south,] without any objection by plaintiff, or any notice that defendant's right to maintain and occupy said land permanently with said tracks was denied or disputed by plaintiff.”

An examination of the record compels the conclusion that these findings, so far as material to the issues in the case, are not supported by the evidence. There is no doubt of the correctness of the proposition announced by the trial judge in his memorandum, that, if a landowner, in consideration of special benefits to his property to be derived from railroad facilities, agrees to give the right of way to a railroad company, and accepts such special benefits as full compensation, and the railroad company accepts the offer, and builds its road, and affords such special benefits, the contract is as binding as if the railroad company had paid for the right of way in money. But the difficulty in this case is that there is an entire lack of evidence of any such agreement. There is not an intimation by any witness that any express agreement to that effect was ever made. If found to exist, it must be wholly implied from the conduct of the parties. What the learned trial judge probably meant was...