Minneapolis & St. Paul Suburban Railway Company v. Manitou Forest Syndicate
| Decision Date | 17 May 1907 |
| Docket Number | 15,257 - (177) |
| Citation | 112 N.W. 13,101 Minn. 132 |
| Parties | MINNEAPOLIS & ST. PAUL SUBURBAN RAILWAY COMPANY v. MANITOU FOREST SYNDICATE and Others |
| Court | Minnesota Supreme Court |
Petition in the district court for Hennepin county for the appointment of commissioners to condemn certain lands for a right of way. The hearing was held before Simpson, Brooks John Day Smith, and Fred V. Brown, JJ., who denied the petition. From the order denying the petition, petitioner appealed. Reversed.
Eminent Domain -- Interurban Railway -- Common Carrier -- Articles.
Petitioner's articles of incorporation authorized it to purchase, lease build, own, and operate suburban street railways extending from the limits of the cities of St. Paul and Minneapolis to and into outlying cities, towns, and villages within the state of Minnesota -- one line beginning at of Minnesota -- one line beginning at the easterly limits of St. Paul, and running thence in a northeasterly direction through the village of North St. Paul, by White Bear Lake, to the city of Stillwater; another line beginning at the southerly limits of St. Paul, and extending thence in a general southeasterly direction to South St. Paul; another line beginning at Camden Place, in Minneapolis, and running thence in a northwesterly direction to the city of Anoka; another line extending from the western limits of Minneapolis at a certain point, and running thence in a westerly direction through the village of Hopkins to Lake Minnetonka -- the routes for such lines to be designated as shall be determined upon by the company. Among its other stated powers is the right to own and operate by electric or steam power such steamboats, launches, or other boats as may be determined upon by the company upon the lakes of Minnesota, and power to purchase and own stock or stocks of suburban or other street railway companies, and to purchase or lease railways within the state, and to lease, construct, and operate electric or other power stations for the purpose of furnishing electric light or power. Held:
1. As determined by the main purport of its articles, such corporation is a work of internal improvement and a common carrier, and, its articles having been executed in compliance with title 1, c. 34, G.S. 1894, was entitled to exercise the right of eminent domain conferred by section 2592 thereof, even though the incorporators declared in the articles that they proposed to incorporate under the provisions of title 2.
2. Such corporation is none the less a common carrier, as defined by section 379, G.S. 1894, though its articles do not in terms prescribe that one of its powers is to carry freight.
3. In determining under what title the corporation was organized, the fact that the organizers denominated the proposed improvement a "street railway" is not controlling, since it conclusively appears from the articles that it was not the purpose of the company to construct and operate street, but interurban, railways from place to place.
Eminent Domain -- Revised Laws 1905.
The right to exercise the power of eminent domain, conferred upon a corporation organized under title 1, c. 34, G.S. 1894, was not abrogated, but recognized, continued, confirmed, and re-enacted, by the provisions of the Revised Laws.
Eminent Domain -- Crossing Railroad Tracks.
Section 2915, R.L. 1905, authorizing a railroad company to cross the tracks of another such company at points of intersection, and to acquire such easement by condemnation, confers such right on all railroad corporations organized under the former statutes, as well as those organized under the Revised Laws.
Occupying Streets.
The crossing of streets and alleys incidental to constructing a railroad from place to place does not constitute the occupancy of such streets or alleys for the purpose of operating a railway thereon, within the provisions of section 2841, R.L. 1905; and a railroad company has the right to acquire by condemnation, under section 2916, R.L. 1905, a right of way over the streets and alleys of cities and villages, and over private property within such limits, without securing a franchise from the municipal authorities.
Munn & Thygeson and Koon, Whelan & Bennett, for appellant.
The Century Dictionary defines "street railroad" as a railroad constructed upon the surface of a public street in towns and cities. The essential feature of a street railway is that it is an aid of the ordinary use of the street. That it is not an additional servitude upon the land adjoining the street upon which it is operated. For that reason it must necessarily follow the streets, it must necessarily be laid along the surface of the streets and not through cuts or on fills, for that would be a servitude upon the adjoining owner. It must derive its business from the street, otherwise it would not be an aid to the street. It must so operate its cars as not to exclude the ordinary uses of the street by teams, vehicles, and by pedestrians, and for that reason street railways are required to so lay their tracks that the rails will not project above the level of the street or highway, and until recently all street railways were prohibited from using the so-called T-rail. The T-rail was itself a mark or sign of the railroad. T-rails are now used by street railways on condition that the space between the rails and on each side of the rails is so filled that the rails create no obstruction to the wheels of vehicles. The motive power is immaterial. Whether it carries passengers or baggage or freight is also immaterial, if that business is derived from the street. Carli v. Stillwater St. Ry. & T. Co., 2, Minn. 373; Newell v. Minneapolis, L. & M. Ry. Co., 35 Minn. 112; State v. District Court, 54 Minn. 34; Funk v. St. Paul C. Ry. Co., 61 Minn. 435; State v. Duluth G. & W. Co., 76 Minn. 96; City of Stillwater v. Lowry, 83 Minn. 275. See also Kline v. Minnesota Iron Co., 93 Minn. 63; Schus v. Powers-Simpson Co., 85 Minn. 447.
The power to carry freight does not change a street railway into a railroad or vice versa. Montgomery v. Santa Ana, 104 Cal. 186; Lewis, Em. Dom. § 115 (i); San Antonio v. Limburger, 88 Tex. 79; McQuaid v. Portland, 18 Ore. 237; Paquet v. Mt. Tabor, 18 Ore. 233; Chicago v. Whiting, 139 Ind. 297; Nichols v. Ann Arbor, 87 Mich. 361; Pennsylvania v. Montgomery, 167 Pa. St. 82, 90; Harvey v. Aurora, 174 Ill. 295; Hannah v. Metropolitan, 81 Mo.App. 78; Schaaf v. Cleveland, 66 Oh. St. 215; Baltimore v. Baltimore, 84 Md. 1; Heilman v. Lebanon, 180 Pa. St. 627; Chicago v. Milwaukee, 95 Wis. 561; Diebold v. Kentucky, 117 Ky. 146; Riggs v. St. Francois, 120 Mo.App. 335; Williams v. City Electric St. Ry. Co., 41 F. 556; Cedar Rapids v. Cummings, 125 Iowa 430; Zehren v. Milwaukee (Wis.) 41 L.R.A. 575; Mordhurst v. Fort Wayne (Ind.) 66 L.R.A. 105, 115; Nellis, Acc. St. Ry. L. 9, note; Hinchman v. Paterson, 17 N.J.Eq. 75; 27 Am. & Eng. Enc. (2d Ed.) 5.
The following cases from other states illustrate the extent to which suburban companies exercise the right of eminent domain: In re Washington St., 115 N.Y. 442; In re Rochester Electric Ry. Co., 123 N.Y. 351; Malott v. Collinsville, C. & E. St. L. Ele. R. Co., 108 Fed 313; Ogden City v. Ogden City, 7 Utah, 207; Elliott, R. 11, note; Boyd v. Logansport, 161 Ind. 587; City of Chicago v. Rumsey, 87 Ill. 348; 15 Cyc. 574; Stewart v. Milwaukee, 110 Wis. 540; Adee v. Nassau, 72 A.D. 404; State v. Centralia-Chehalis, 42 Wash. 632; In re Eastern Wisconsin Ry. & L. Co., 127 Wis. 641; Union v. Basey, 164 Ind. 249; Wabash v. Ft. Wayne, 161 Ind. 295; Cook v. Boon, 122 Iowa 437; Kansas City v. Nelson, 193 Mo. 297; Wilder v. Aurora, 216 Ill. 493; Chicago v. Chicago, 211 Ill. 352; Richmond v. Seaboard, 103 Va. 399; Lewis, Em. Dom. § 956b.
The general power to build from Minneapolis to Minnetonka of itself gives the right to cross intervening railroads. Lewis, Em. Dom. §§ 268, 268a; In re Stillwater & M. St. Ry. Co., 171 N.Y. 589; section 2915, R.L. 1905; In re Minneapolis & St. Louis Ry. Co., 36 Minn. 481, 493; Stewart v. Wisconsin Central Co., 89 F. 617; Malott v. Collinsville, C. & E. St. L. Ele. R. Co., 108 F. 313.
Belden, Jamison & Shearer, for respondents Manitou Forest Syndicate cate and L. S. Gillette Company.
Appellant urges that its line is not a street railway line because it does not run on highways between Minneapolis and Excelsior. It is admitted that it crosses and parallels highways. Its claim seems to be that it is a street railway when it is on the streets, but when it is on its own private roadbed, it is a railway -- a sort of kaleidoscope -- one minute, when its cars are on a street, it is a street railway, and the next minute, when it is on its own roadbed, it is a railway. In considering this contention of appellant it must be borne in mind that a street railway is in aid of travel; that it is hence, not an additional servitude upon the adjacent property. A street railway may, however, be in aid of travel, even though it be not located upon a street or highway. If the purpose of the line is to convey passengers, and the line is run in proximity to streets or highways, even though it be upon its own private roadbed, still it may be said to be operated in aid of travel. This being so it cannot successfully be contended that if the line is not run on the highway it is, hence, not a street railway. If appellant's contention is correct, then if, perchance, it should run a line for a long distance within a few feet of a highway, drawing travel therefrom, it must be regarded as a railway and not a street car line. This position of appellant leads to an absurd conclusion. The franchise received by it from the village of Excelsior simply permits it to operate its cars upon the streets thereof; it is specifically...
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