State ex rel. City of Minneapolis v. Minneapolis & St. Louis Railway Company
| Decision Date | 14 September 1888 |
| Citation | 39 N.W. 153,39 Minn. 219 |
| Parties | State of Minnesota ex rel. City of Minneapolis v. Minneapolis & St. Louis Railway Company and another |
| Court | Minnesota Supreme Court |
Appeals by the Minneapolis & St. Louis Ry. Co., and the St Paul, Minneapolis & Manitoba Ry. Co. from a judgment of the district court for Hennepin county in mandamus proceedings brought by the city of Minneapolis and tried by Lochren and Rea, JJ.
Judgment affirmed.
J. D Springer and F. D. Larrabee, for Minneapolis & St. Louis Ry. Co., appellant.
M. D. Grover and Benton & Roberts, for St. Paul, Minneapolis & Manitoba Ry. Co., appellant.
Seagrave Smith, for respondent.
For the sake of brevity we will, in this opinion, designate these two railroad corporations as the St. Louis Company and the Manitoba Company, respectively. This mandamus proceeding was originally commenced against the St. Louis Company, to compel that corporation to construct bridges upon Washington avenue, Third, Fourth, and Fifth streets north, in the city of Minneapolis, above its railroad tracks, which, running easterly and westerly, now cross those streets upon the same level as the streets themselves. The work proposed also included the construction of approaches to the southerly ends of these bridges, upon these streets, above their present grade, and beyond the lands which the corporation has acquired for its purposes. It was also contemplated that the railroad tracks should be lowered, so as to allow the bridges to be constructed with a less elevation above the grade of the streets than would otherwise be necessary. The tracks of the Manitoba lie next northerly from and parallel with those of the St. Louis Company, and cross these streets in the same direction. The two systems of tracks are, however, separated, a hundred feet or more, by lands which the Manitoba Company has acquired for its purposes. When this cause came on for trial, a similar proceeding had been commenced against the Manitoba Company to compel that corporation to construct bridges over its tracks and its intervening lands, with approaches at their northerly ends. These separate proceedings against the two corporations contemplated that the work thus charged upon them separately should, when performed, constitute entire and complete bridges over both systems of tracks, with proper street approaches. The proceeding against the Manitoba Company, after judgment against it in the district court, was brought to this court by appeal. Our decision upon that appeal, affirming that of the district court, is reported in 38 Minn. 246, (36 N.W. 870.) During the trial of this proceeding against the St. Louis Company, it appearing that the Manitoba Company claimed some interest in one of these St. Louis tracks, and the only one of its tracks which crosses Washington avenue, it was ordered by the court, upon the motion of the relator, and with the consent of the Manitoba Company, that the relator's information and the alternative writ be amended so as to make the Manitoba Company a party respondent. The St. Louis Company objected. After the trial of the cause, the court having adjudged that a peremptory writ of mandamus should issue against the St. Louis Company, requiring the prosecution of the work in question, in general accordance with the plan of the relator set forth in its information, but with some particular modifications, both of the respondent corporations appealed.
The appeal of the St. Louis Company will be first considered. Without referring specifically to the 83 assignments of error made by this appellant, many of which present questions which were involved in and determined by the decision in State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N.W. 3,) and in the case of the same parties, 38 Minn. 246, (36 N.W. 870,) we propose to direct attention to such of the subjects referred to in these assignments as seem to us to require particular mention in this opinion.
The allowance of the amendment bringing in the Manitoba Company as a party respondent was not error. The statute authorizes this practice. Gen. St. 1878, c. 80, § 9; Id. c. 66, § 43. It was proper in this case, in order that that company might be concluded in respect to the proposed changes in the track to which it had or asserted some right. At the time of the trial of this proceeding against the St. Louis Company, the like proceeding against the Manitoba Company, above referred to, being then pending, and ready for trial, the court ordered both cases to be tried together, the St. Louis Company objecting. In this we see no abuse of the discretion of the court, in view of the peculiar nature of these causes, the similarity, and to a large extent the identity, of the questions to be considered, and of the evidence bearing upon them, and of the fact that in determining either case regard should be had to the determination in the other; for obviously neither respondent should be required to construct sections of bridges over its tracks, unless the sections over the tracks of the other company should also be constructed. There was no consolidation of the cases, but the evidence in both was received at the same time. A great deal of testimony, covering several hundred printed pages, had already been taken in the St. Louis case before a referee, which the Manitoba Company appears to have allowed to be read as evidence in its case. We think that the circumstances would have justified a joint proceeding against both companies.
It admits of no question that, in general, mandamus may be resorted to as a means of compelling the performance of a duty such as is claimed by the relator to rest upon this railroad company; and it has been resorted to in this state in cases like that now under consideration. State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N.W. 3;) same parties, 38 Minn. 246, (36 N.W. 870.) It is urged by this appellant, as an objection to the writ in this case, that it prescribes particularly the manner in which the alleged duty shall be performed, instead of allowing the respondent to adopt its own plan for restoring the usefulness and safety of these streets. Where, as in this case, it has been in no manner determined, either by the law, by the circumstances of the case, or otherwise, how the alleged duty should be performed, the course suggested by this contention of the respondent would be subject to most obvious objections. It may be assumed that where it is necessary to resort to compulsory process of the courts in such cases, it is because there is a disagreement between the public authorities and the respondent as to the duty of the latter to do anything, or as to what its duty requires it to do. Neither of the parties thus opposed in interest can determine these matters of difference. It is for the courts to decide. State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N.W. 3.) It is expedient that the thing to be done be effectually determined before a peremptory writ be issued, and that the party upon which the duty may be found to rest be required to do that specific thing, which, when done, must be accepted as the performance of its duty. If the writ were to command generally the performance of the duty of restoring the street to a condition of safety and usefulness for public travel, the respondent being left to select its own plan and means of accomplishing this result, it might be found, after much time and money had been consumed in carrying out the plan adopted by the respondent, that it was not such as to accomplish the public purposes in view. The court might so decide and command the work to be undertaken anew. In People v. Dutchess & Columbia R. Co., 58 N.Y. 152, the writ was made specific, the respondent claiming to have already performed its duty in the premises. The same reasons which suggest the propriety for making a writ specific in such a case are equally applicable in any case where the nature of the thing to be done is uncertain, and can only be determined by the judgment of the court. It was the more clearly necessary in this case that the plan for restoring these streets be judicially determined, and the writ made specific, from the fact that the purposes of the proceeding could only be accomplished by the adoption of one plan for both of these respondents, so that the work of each should be the complement of that of the other, the whole forming complete bridges adapted to the necessities of the public. Under our statute, (Gen. St. 1878, c. 80, § 9,) allowing amendments of the writ and answer as in respect to pleadings in civil actions, and prescribing that the issues be tried and further proceedings had in the same manner as in civil actions, this proceeding is sufficiently elastic to enable the court to determine upon trial the plan which ought to be adopted to accomplish the ends in view.
It is said that the accomplishment of the purposes contemplated by this proceeding is contingent upon the Manitoba Company being required to bridge its tracks in accordance with the same plan. This suggests the expediency of one proceeding against both companies; but, as the case stands, and as the Manitoba Company has been required to so proceed, that contingency is not deemed to be a reason for setting aside the determination in this case.
We deem the decisions of this court, above cited, to be decisive of several important points urged by the appellant, such as the duty to construct necessary bridges; the continuous nature of the respondent's duty in respect to the restoration of the streets; the right to compel the sinking of its tracks for this purpose, and without compensation; the construction of street approaches extending along the streets in front of property owned by...
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