Town of Kinghurst v. International Lumber Co.
| Decision Date | 20 April 1928 |
| Docket Number | No. 26634.,26634. |
| Parties | TOWN OF KINGHURST et al. v. INTERNATIONAL LUMBER CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Itasca County; Graham M. Torrance, Judge.
Action by the Town of Kinghurst and others against the International Lumber Company and others for an injunction. From an order sustaining a demurrer to their answers, defendants appeal. Reversed.
C. C. McCarthy and W. B. Taylor, both of Grand Rapids, for appellants.
R. A. McOuat, of Grand Rapids, and Gannon, Strizich & Farnand, of Hibbing, for respondents.
Defendants appealed from an order sustaining a demurrer to their answers.
Defendant corporation owns timber in Northern Minnesota, including some in plaintiff townships. For years it has been engaged in cutting and hauling its timber. It owns and uses in its business a private logging railroad which extends from International Falls, where it manufactures forest products, to about 100 miles into the forest. Such railroad has always crossed highways. Meeting opposition in plaintiff townships, the company made application to the board of county commissioners for a permit pursuant to Laws 1927, c. 288, authorizing it to cross certain highways in said townships. The permit was granted September 19, 1927, and a $100,000 bond was required. This action was brought to restrain and enjoin the issuance of the permit and to enjoin the company from extending its roads across highways and from further use of those already laid.
The order from which the appeal is taken rests upon the theory that Laws 1927, c. 288, is unconstitutional.
1. "No person shall * * * be deprived of * * * property without due process of law." Minn. Const. art. 1, § 7. Of course the Legislature cannot authorize the taking of private property for private use. State ex rel. Schubert v. Board of Supervisors of the Town of Rockford, 102 Minn. 442, 114 N. W. 244, 120 Am. St. Rep. 640; Sanborn v. Van Duyne, 90 Minn. 223, 96 N. W. 41; City of St. Paul v. C., M. & St. P. Ry. Co., 63 Minn. 352, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184.
(a) In the ordinary highway the abutting landowner owns the fee to the center of the road subject to the public easement giving the right to use the same as a highway. Whatever rights plaintiffs have in the highways in question they hold in trust for the public use. But what are the rights of the fee owner? He is an owner, but his rights are subordinated to the easement, which he cannot destroy. There are then two estates in the land.
(b) We are dealing with a corporation which owns the fee on both sides of the highways. It owns its roadbed or right of way. Its tracks are upon its own ground. Its extensions will be on its own ground. Does the presence of the public easement for travel on the highways prevent the owner from using his own lands so long as he does not obstruct or interfere with the travel thereon? We think not. The company is the fee owner on both sides of the roads. The existence of the public easement in the highways cannot deprive the fee owner of the right to cross such highways, which divide his lands, as his convenience and necessity may require. Village of Mankato v. Willard, 13 Minn. (Gil. 1), 12, 97 Am. Dec. 208; Newell v. M. L. & M. Ry. Co., 35 Minn. 112, 27 N. W. 839, 59 Am. Rep. 303. The fee owner has the right to use his fee in the highway for such private purpose as he may desire unless and until such use unreasonably interferes with the public travel thereon. 29 C. J. 548, 549. He may cross with his teams and farm machinery or with his cattle. He may cross with a disc harrow, a spring tooth harrow, a quack grass machine, a threshing machine, a tractor, a horse-pulled logging sled on a snow road with its ice ruts, though some of these tend to impair the efficiency of the highway. The only difference between any of these and a logging railroad is the presence of the ties and rails. With this exception the difference is one of degree only. When new means of locomotion or transportation come into use they must be recognized so long as they are not dangerous and do not interfere with the proper use of the highway. 29 C. J. 647, § 410.
(c) We see no reason why such landowner cannot plank his way across the highway if he desires, as long as he does not interfere with the public travel. But such railroad is not for all time. Its presence is of limited duration. If properly constructed and maintained, its temporary physical presence is not incompatible with the travel on the highway.
(d) The presence of such private logging road in crossing the highway cannot be treated or considered as adding an additional servitude. It is an incident to ownership. Such use by the fee owner is always permissible and possible, subject only to the constant and imperative restriction that the right of the public travel is paramount. We take judicial notice of the fact that such private logging railroad is the most economical and in many places the only practical method of marketing great areas of timber products. We also take judicial notice of the fact that the ordinary sled and snow logging road with its necessary iced ruts would ordinarily constitute a much greater obstruction when crossing a highway than a crossing of the character here involved.
Damages, not including special damages, which are not here involved, to an abutting owner for the construction and maintenance of a railway on a street, are limited to those which result from the construction and operation directly opposite his land. Dunnell's Minn. Dig. (2d Ed.) § 3067; Adams v. C. B. & N. Ry. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644; Gustafson v. Hamm, 56 Minn. 334, 57 N. W. 1054, 22 L. R. A. 565; Demueles v. St. P. & N. P. Ry. Co., 44 Minn. 436, 46 N. W. 912; Papooshek v. W. & St. P. Ry. Co., 44 Minn. 195, 46 N. W. 329; Lamm v. C. St. P. M. & O. Ry. Co., 45 Minn. 71, 47 N. W. 455, 10 L. R. A. 268; Stuhl v. G. N. Ry. Co., 136 Minn. 158, 161 N. W. 501, L. R. A. 1917D, 317. So when the fee owner merely passes from his fee on one side to his fee on the other side, who is damaged? There is a great difference between a railroad which travels along a highway and one which merely crosses it. M. & St. P. Suburban Ry. Co. v. Manitou Forest Syndicate, 101 Minn. 132, 151, 112 N. W. 13. The statute really gives such fee owner nothing which he did not already have. It is a regulatory statute. However, we will discuss plaintiffs' contentions upon their theory.
Plaintiffs have no proprietory interest in the highways. No private property of plaintiffs' is taken or damaged by the presence of such logging road where it crosses the highways. In a constitutional sense they have no property involved. City of International Falls v. M. D. & W. Ry., 117 Minn. 14, 134 N. W. 302. If the statute were construed as authorizing the imposition of an additional servitude made by the railroad crossing, we would hold that it does not take from the owners of other lands, on both sides of the road throughout the entire length, their property or any interest therein. So construed the statute would not contemplate or involve the taking of property. It would merely authorize the owner of property to use his own in a way not to interfere with the public easement for the protection of which the matter was put in the hands of the county board, and no one would be deprived of his property without due process of law.
We see no constitutional objection to the Legislature authorizing the county board to permit an additional servitude upon the public easement so long as it does not impair the integrity of such easement or interfere therewith. The claim that such additional servitude created by the railroad crossing will operate to take private property from the owners of lands adjacent to the highway but not included in the crossing is fanciful and cannot find substantial support from the record before us. The only interference with the public travel is the occasional wait for a train to pass; but such an incident is common to our dependency upon each other. It would be no more serious than if the company used tractors or snow roads in place of the railroad, as it concededly has a right to do.
To a very great extent plaintiffs' case rests upon the proposition that the construction and maintenance of the logging railroad across a highway is an unlawful obstruction thereof under G. S. 1923, § 2615, and would be a public nuisance within G. S. 1923, § 10241. The record does not warrant this assumption of fact. The supervision of the construction and maintenance is in the hands of the county board, and we must assume that no statutory obstruction will be created or maintained in violation of section 2615, much less a public nuisance within section 10241. We do not recognize the ordinary grade commercial railroad crossings upon our highways as obstructions or nuisances. They are not.
In the matter of obstruction of a highway, every alleged incident must stand on its own facts, but it is only where there has been a clear diversion of the highway to a use inconsistent therewith that the courts will interfere. City of St. Paul v. C., M. & St. P. Ry. Co., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184. The element of necessity sometimes becomes important. Village of Mankato v. Willard, 13 Minn. (Gil. 1) 12, 97 Am. Dec. 208; Hoey v. Gilroy, 129 N. Y. 132, 29 N. E. 85. These features are important only in the determination of the facts.
Under any construction the statute does not contemplate or involve the taking of property. It recognizes and regulates the right of the owner of the fee to use the highway so long as he does not unreasonably interfere therewith. Yet, if we followed plaintiffs' construction and said that it gave such fee owner an additional right we would have to hold that such restricted use by the owner of the fee would not be a...
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