Pike Rapids Power Co. v. Minneapolis, St. P. & SSM Ry. Co.

• Decision Date: 23 October 1939
• Docket Number: No. 11517.,11517.
• Parties: PIKE RAPIDS POWER CO. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

106 F.2d 891 (1939)

PIKE RAPIDS POWER CO. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

No. 11517.

Circuit Court of Appeals, Eighth Circuit.

October 23, 1939.

James G. Nye, of Duluth, Minn. (Gillette, Nye, Harries & Montague, of Duluth, Minn., on the brief), for appellant.

James L. Hetland, of Minneapolis, Minn. (John A. Anderson, of Minneapolis, Minn., and Fryberger, Fulton & Boyle, of Duluth, Minn., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment purporting to have been entered on mandate of this court. On the first appeal, the judgment of the lower court was modified and the cause remanded with directions to vacate the judgment appealed from and to enter a judgment not inconsistent with the opinion of this court. Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 8 Cir., 99 F.2d 902. The appeal presents the single question as to whether the lower court entered judgment consistent with the opinion of this court. The parties will be referred to as they were designated in the lower court.

This suit was originally brought by plaintiff in 1907, to enjoin the construction of a bridge which the defendant was then constructing across the Mississippi River, and for damages for trespass on lands on both sides of the river, of which plaintiff claimed ownership. Defendant railway company, in accordance with the Minnesota practice, converted the action into one for condemnation. Defendant, by its answer, denied trespass and put plaintiff to its proof as to what lands it owned. The proceeding was allowed to lie dormant until 1925 and was not finally decided until 1938. In the meantime, in 1924, plaintiff constructed a dam a short distance upstream from the bridge, and the current of the river was thereby diverted so as to make it necessary to reinforce the bridge piers constructed by defendant to prevent damaging them. In these circumstances, the parties agreed that plaintiff should "advance the money" to pay for the work, and "it was further agreed that the parties would attempt to settle the following disputed matters by negotiation:

"(a) The liability or responsibility of each of the parties hereto with reference to the cost of doing all of the work of strengthening the * * * piers of said bridge in accordance with said plans and specifications;

"(b) The amount of damages to which plaintiff is entitled by reason of any taking of its property as described in the complaint which may be established, including such amount, if any, as it may be entitled to receive on account of any added expense in the construction of its dam or on account of payments which it may be required to make for the strengthening of said * * * bridge piers.

"(c) The liability or responsibility of each of the parties hereto with reference to any further strengthening of the said bridge or any part or support thereof which may hereafter appear necessary and, if the questions are submitted to the Court as hereafter provided, the Court may retain jurisdiction of this cause for such time and consider such matters hereafter arising as may be necessary to determine such liability or responsibility and the amounts thereof."

There were four piers resting on the bed of the river supporting defendant's bridge, two being located on the east side of the river and two on the west side. The lower court held the plaintiff liable for the damages to all four of the bridge piers occasioned by the construction of its dam, including the costs advanced for strengthening them; held that the defendant owned the equitable title to its right of way on the west bank of the river, and awarded plaintiff $1,295 damages for the taking of right of way by the defendant on the east bank of the river. On appeal to this court, plaintiff indicated "its willingness to accept the damages awarded it for the right of way on the east bank," but complained of the balance of the judgment. This court held that defendant was the equitable owner of the right of way occupied by it on the west side of the river, including the riparian rights incident to the land, and hence, that plaintiff was liable for any damage to the two piers on the west side of the river, and it was not therefore entitled to reimbursement for the cost of strengthening and protecting those piers against damage, but that plaintiff was entitled to recover the unpaid purchase price on defendant's contract for a right of way deed on the west side of the river as assignee of the original owner. As to the east side of the river, this court held that as plaintiff was the owner of the land and the incident riparian rights on the east side, and as defendant was a trespasser upon plaintiff's property, defendant was responsible for any damage to the two bridge piers on the east side of the river, and that plaintiff was entitled to recover the sums which it had advanced for strengthening those piers, with six per cent interest from the dates of the respective advancements.

The mandate proper, as distinguished from the opinion, read, "that the judgment of the said District Court in this cause, be, and the same is hereby reversed insofar as it relates to the liability and responsibility of the parties for damages to the defendant's two bridge piers resting on the east side of the middle of the Mississippi River, and in all other particulars the judgment is hereby affirmed."

The original judgment was in separate paragraphs, each paragraph being numbered. So far as here pertinent it read as follows:

"Now, Therefore, In accordance with said findings and...