Town of Lyle v. Chi., M. & St. P. Ry. Co.

• Decision Date: 13 November 1893
• Citation: 55 Minn. 223,56 N.W. 820
• Parties: TOWN OF LYLE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Minnesota Supreme Court

55 Minn. 223

56 N.W. 820

TOWN OF LYLE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

Nov. 13, 1893.

(Syllabus by the Court.)

1. In proceedings to lay out a highway the notice of the time and place of the hearing on the petition is jurisdictional, and must be given in strict conformity to statute, especially where it is only served on a party by posting.

2. Held, that the notice in this case did not properly specify defendant's land as one of the tracts over which the highway would pass, and therefore as to it the proceedings were without jurisdiction and void.

Appeal from district court, Mower county; Farmer, Judge.

Action by the town of Lyle against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff, and defendant appeals. Reversed.

Kingsley & Shepherd, for appellant.

D. B. Johnson and S. D. Catherwood, for respondent.

MITCHELL, J.

This action was brought under chapter 222, Laws 1889, to recover damages for defendant's neglect to build a highway crossing. The defendant rests his defense on two propositions: First, that there was no highway across its railroad at the point named; second, that the statute referred to is, as applied to the alleged highway, unconstitutional. We find it necessary to consider only the first. The highway is claimed to have been laid out by the town supervisors in 1875. The law then in force regulating such proceedings was Laws 1873, c. 5, as amended by Laws 1875, c. 35, which, as subsequently amended, is Gen. St. 1878, c. 13. The condition of things when these proceedings were instituted in 1875 was as follows: The defendant, a foreign corporation operating a railway in this state under authority of our laws, owned in fee a strip of land 100 feet wide, running north and south through the E. 1/2 of the S. E. 1/4 of section 2, and the N. E. 1/4 of section 11, in the town of Lyle. There were no buildings and no one residing on this strip, nor was it inclosed by a fence, but defendant was in the actual possession, and had built and was maintaining its railroad upon it, over which it was daily running its trains. The defendant maintained stations along its road, one of which was within the town of Lyle, at each of which it kept a regular ticket and freight agent for the transaction of its business. The remainder of the two above-described government subdivisions was in the possession and occupancy, respectively, of two of the petitioners for the road, Parmenter and Talouse.

We next turn to the proceedings themselves. The petition for the highway assumed to give the names of all the owners of the land over which the road would pass, except of one tract, (not here involved,) who was stated to be unknown; but it nowhere stated the name of the defendant as one of such owners, nor was its land anywhere described, nor was there anything in the petitition to show that the proposed highway would pass over its land, except that it gave the route or line of the highway, which, if compared with the actual location of defendant's land, would show that it would cross it. The notice of the time and place of hearing the petition made out by the supervisors described the line of the proposed highway, and assumed to give the description of the several tracts of land over which it would pass; also the names of the several occupants thereof. Defendant's name was not stated in this notice (which was not addressed to any one) as owner or occupant of any of these tracts; neither was its land described or referred to at all, except that the entire government subdivisions, of which it was a part, were described as a whole, and the occupants thereof stated to be Parmenter and Talouse, respectively. This notice was never served on defendant, unless posting copies thereof in three public places in the town constituted such service. The defendant was not made a party to these proceedings, nor did it ever...