N. Pac. Ry. Co. v. Kreszeszewski
| Decision Date | 03 March 1908 |
| Citation | 115 N.W. 679,17 N.D. 203 |
| Parties | NORTHERN PAC. RY. CO. v. KRESZESZEWSKI et al. |
| Court | North Dakota Supreme Court |
A complaint in an action by a railway company to condemn certain property as a site for a reservoir for the collection and storage of surface water for use in its engines sufficiently alleges a cause of action if it sets forth the ultimate facts showing that the property sought to be condemned is necessary for the purpose of obtaining water required in the operation of its trains.
Private property cannot be taken under the power of eminent domain except for a public use, but under the law of this state the use of property reasonably necessary for the construction, maintenance, or operation of a railroad is a public use.
Ultimate facts are all that it is requisite or proper to plead, and hence a complaint in an action by a railway corporation to condemn property is sufficient if it alleges that the use thereof is necessary to its construction, maintenance, or operation, without alleging in terms that such desired use is a public use. Such latter allegation would constitute a mere conclusion of law.
Evidence examined, and held sufficient to sustain the allegations of the complaint as to the necessity for the use of the property and the whole thereof sought to be condemned.
The description of the easement sought to be condemned for the construction of a pipe line is held sufficiently definite and certain.
Appeal from District Court, Burleigh County; E. T. Burke, Special Judge.
Condemnation proceedings by the Northern Pacific Railway Company against William Kreszeszewski and others. From a judgment condemning certain property and an order denying a new trial, defendants appeal. Affirmed.Andrew Miller and A. T. Patterson, for appellants. Ball, Watson & Young and Newton & Dullam, for respondent.
Plaintiff recovered a judgment in the court below condemning certain real property to its use for alleged railway purposes. From such judgment and from an order denying a motion for a new trial, this appeal is prosecuted.
The purpose for which said property is sought by the railway company, as alleged in its complaint, is to construct a reservoir for the collection and storage of surface water for use in operating its engines, and for the purpose of laying a pipe line therefrom to its railway track at Sterling. A mere easement for the latter purpose is all that is prayed for. The necessity for such use is duly alleged in the complaint. Defendants deny the existence of such necessity, and they contend that the facts alleged and proven do not entitle plaintiff to the relief demanded.
After the first witness was sworn, and before any testimony was offered, defendants objected to the introduction of any evidence, for the reason, as stated, that the complaint shows on its face that the court has no jurisdiction of the subject-matter because: (1) The complaint shows on its face that the action is one for condemnation under the law of eminent domain, and that the use for which said premises are contemplated is the private convenience of the plaintiff. (2) The complaint fails to allege that the plaintiff is unable to obtain sufficient water to operate its line at other places. (3) Said complaint fails to state that there is any necessity for said condemnation. (4) Said complaint fails to allege that the condemnation prayed for is for the use or benefit of the public. (5) Said complaint fails to allege that, by condemning the premises sought to be condemned, the plaintiff will be enabled to obtain sufficient water to operate its line of road. (6) Said complaint fails to allege that the premises for which condemnation is prayed are reasonably necessary for the convenience of the public and the operation of its line of road. (7) Said complaint fails to allege that the public will be in any manner benefited by said condemnation. (8) The proceedings contemplated are in violation of the rights of private ownership of property, contrary to public policy, and in violation of section 14 of the Constitution of the state, and in violation of the provisions of article 5 of the amendments to the Constitution of the United States.
Such objection was overruled, and at the close of plaintiff's evidence defendants moved to dismiss the action on the following grounds: (1) That the evidence introduced fails to establish the public necessity for the condemnation of the premises described in the complaint, or any portion thereof. (2) The evidence fails to show a public necessity for the condemnation of all the premises described and sought to be condemned in this action. (3) The evidence affirmatively shows that no sufficient public necessity exists to warrant the condemnation of the premises or any part thereof. (4) The evidence fails to show that the general public will receive any material benefit from the proposed condemnation. (5) The evidence shows that the object of the proposed condemnation is wholly for the private convenience and profit of the plaintiff. (6) The evidence and the allegations of the complaint are too vague and indefinite, especially in regard to the proposed easement for a pipe line mentioned in the evidence for the court to properly adjudge the condemnation asked. This motion was also overruled, as was a similar motion made at the close of all the evidence. A verdict having been returned in plaintiff's favor, and judgment entered pursuant thereto, a motion for a new trial based upon substantially the same grounds urged in support of the foregoing objection and motion was made and denied, and the same grounds are urged in this court for a reversal of the judgment and order appealed from. These alleged errors will be disposed of in the order in which they are argued in appellants' brief.
The first contention is that the trial court erred in overruling the first, fourth, sixth, and eighth grounds of defendants' objection to the jurisdiction of the court. It is argued by appellants' counsel that the complaint fails to allege that the property is sought to be taken for a public use, but that it discloses, on the contrary, that the use to which the property is sought to be subjected is a mere private use, namely, the private convenience of plaintiff in obtaining a supply of water at said station for its engines. The general propositions of law advanced by appellants' counsel, that private property cannot be taken for other than public uses, and that the complaint must allege the necessity for the taking and that it is intended for a public use, are undoubtedly sound, and it only remains to apply such well-settled rules to the case before us. Is the use to which the property is sought to be applied a public use? If so, the foundation of appellants' argument necessarily falls and with it the superstructure which he has reared. We think section 7575, Rev. Codes 1905, furnishes a complete answer to the above question. This section provides: “Supject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses: * * * (4) Wharfs, docks, piers, chutes, booms, ferries, bridges, toll roads, by-roads, plank and turnpike roads, railroads. * * *” Here is an express legislative declaration that the taking of property for a railroad purpose is the taking for a...
To continue reading
Request your trial
-
City of Jamestown v. Leevers Supermarkets, Inc.
...such is, in fact, a public use." Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 574 (1896). See also Northern Pacific Ry. Co. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679, 681 (1908) ("mere legislative fiat cannot make that a public use which is clearly not such use"). Courts can inquire becaus......
- State ex rel Ladd v. The District Court in and for Cass County
- Northern Pacific Ry. Co. v. Boynton
-
City of Solon v. Smiley
... ... Northern Pac. C. Co. v. Boynton, 17 N.D. 203, 115 N.W. 679 ... Since a corporation vested with the right of acquiring property for a public use is entitled to ... ...