Sheldon v. Minneapolis & St. Louis Ry. Co.

• Decision Date: 19 July 1882
• Citation: 13 N.W. 134,29 Minn. 318
• Court: Minnesota Supreme Court
• Parties: SHELDON v MINNEAPOLIS & ST. LOUIS RY. CO.

29 Minn. 318

13 N.W. 134

SHELDONvMINNEAPOLIS & ST. LOUIS RY. CO.

Supreme Court of Minnesota.

Filed July 19, 1882.

Appeal from district court, county of Hennepin, from order denying motion for a new trial.

Koon, Mitchell & Keith, for respondent.

J. D. Springer, for appellant.

MITCHELL, J.

The respondent owned and occupied a tract of land containing some 30 acres, a part of which had been some years ago platted and laid out into village lots, but such lots had never in any way been separated from each other or from the rest of the tract except by the imaginary lines indicated on the plat, and respondent had continued to use, and still used, the whole as one farm or tract for residence and general farming purposes.

The appellant, pursuant to the provisions of section 4, c. 57, Sp. Laws 1870, and section 4, c. 185, Sp. Laws 1879, filed its petition to acquire by condemnation the right of way across this tract of land, in which it described or mentioned only those particular lots, according to the platted survey referred to, through which the proposed right of way passed, and made no mention of the remainder of the tract owned by respondent.

Upon the trial in the court below, upon an appeal from the award of the commissioners, the respondent was allowed, under the objection and exception of appellant, to show the damage to the entire tract or farm caused by appellant's taking the strip through it described in the petition; and the court instructed the jury that the respondent was not limited in the damages he was entitled to recover to the particular lots through which this strip passed, but that in assessing damages they were to take into account the damage to the entire tract. The ruling and instruction of the court upon this point were correct.

It must now be considered settled that in proceedings to acquire the right of way for a railroad by condemnation, either under the general railroad law or under the provisions of special charters similar to those under which these proceedings were instituted, neither the commissioners nor the court are confined in their inquiries to the damage done by the taking of the proposed right of way to that part of the tract described in the petition of the railroad company, but they may inquire into the effect of such taking upon the entire farm or tract out of which the right of way is taken, although only a part of such tract or farm is described in the petition.

This was decided by the court at the present term in Wilmers v. Minneapolis & N. W. Ry. Co. ante, 39, which was a case where the proceedings were instituted under the provisions of the General Statutes, which admit of a more plausible argument in favor of appellants than does the special statute of 1870, under which the present proceedings were instituted. Neither was the respondent required to proceed by cross-petition or otherwise to have the description in the petition corrected or enlarged so as to include the entire tract, or else be limited in his recovery of damages to the land described in his petition. This was also determined in ...