Weir v. St. Paul, S. & T. F. R. Co.

• Decision Date: 01 January 1873
• Parties: FREDERICK W. WEIR v. ST. PAUL, S. & T. F. R. CO.
• Court: Minnesota Supreme Court

Page 139

18 Minn. 139

FREDERICK W. WEIR

v. ST. PAUL, S. & T. F. R. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Washington county, allowing an injunction.

John B. & W. H. Sanborn, for appellant.

Castle & Marsh, for respondent.

BERRY, J.

Plaintiff complains in this case that the defendant, the St. Paul, Stillwater & Taylor's Falls Railroad Company, has entered upon certain lands of which plaintiff is owner in possession, and has surveyed and located, and has commenced to construct, and is still engaged in constructing, and declares its intention to continue to construct, and to operate when constructed, a line of railroad thereon; that said entry of defendant, and the making and constructing of said railroad, are without any authority of law, and in violation of the rights of the plaintiff; that defendant has so entered, etc., under a pretended authority to exercise the right of eminent domain, and under a pretended authority claimed to be conferred by chapter 34 of the General Statutes and not otherwise; that the political question as to whether the taking of the plaintiff's lands, or any lands, for the use and benefit of said railroad is for the public use, * * * has not been passed upon * * * by the legislature of the state of Minnesota, nor by any authority competent to do so; nor has the legislature or any competent authority determined or decided in any way that the proposed railroad would be * * * a public benefit, nor that there is any necessity for the taking of the lands of the plaintiff, or any lands for said enterprise. The relief demanded is an injunction restraining defendant, and persons acting under defendant, from entering upon plaintiff's said land to construct and operate said railroad.

The answer denies that defendant has entered upon plaintiff's said land, or is constructing its railroad thereupon without authority of law; and avers that defendant is a corporation duly organized and in the full exercise of corporate powers, and fully vested with the franchise of way for public use, under and by virtue of chapter 34 of the General Statutes, and amendments, and chapter 64 of the Special Laws of 1871. The answer further avers that defendant is engaged in constructing a railroad from St. Paul, via Stillwater, to Taylor's Falls; that in constructing the same it became necessary to take a portion of plaintiff's land for road-bed, excavation, and fillings; that as soon as it was ascertained what portion of said land would be required in the construction of said road, defendant applied, as provided by chapter 34 aforesaid, to the judge of the district court for the county of Ramsey for the appointment of commissioners to assess the damages which would result to plaintiff from the appropriation of his property to the purposes aforesaid, as well as to assess the damages resulting to other persons from similar appropriations; that the commissioners were appointed by said court, and the time and place of their first meeting designated; that having given notice of their said meeting by three weeks' publication, and by personal notice served upon plaintiff more than five days before said meeting, (plaintiff being a resident of the county in which the land aforesaid was situate,) said commissioners proceeded to assess, and did assess, the damages resulting to plaintiff as aforesaid at $1,000; that said commissioners filed their report, with other necessary papers, in the office of the clerk of the district court aforesaid, and caused personal notice of such filing to be served upon the plaintiff. The answer further avers that defendant tendered to plaintiff $1,000 in full payment of the damages assessed as aforesaid; that plaintiff, refusing to receive the same, said sum was deposited with the clerk of said district court; that thereafterwards plaintiff appealed from said award and report of the commissioners to said district court, which appeal is pending and undetermined; and that defendant has executed and filed with the clerk of said court a bond as provided by section 23, c. 34, Gen. St. In conclusion, the answer avers that defendant has used due diligence to have the damages resulting from the construction of its road determined as prescribed by law, and has always been ready to pay the same when determined. These matters, which we have thus stated in brief, are so set out in the answer as to show by specific allegations a compliance on the part of defendant with each and all of the provisions of chapter 34, applicable to proceedings of this kind.

Defendant having been brought in upon an order to show cause, a hearing was had in this case upon the complaint and answer in the district court for Washington county, and an injunction having been awarded, the case is here upon appeal from the order awarding the same. Very many questions are raised and discussed by counsel which become unimportant in the view which we take of the case, and which it will therefore be unnecessary for us to consider.

The main question, and that which goes directly and squarely to the merits of this controversy, is whether a railroad corporation organized under the general law found in chapter 34, Gen. St., can lawfully take private property for the purposes of its road, by proceeding in accordance with the provisions of said chapter?

Among other things, title 1 of said chapter enacts that any number of persons, not less than five, may associate themselves and become incorporated for the purpose of building, improving, and operating railways, and all works of internal improvement which require the taking of private property or any easement therein. After prescribing the mode of becoming incorporated, etc., section 13 enacts that any corporation organized under the provisions of said title may obtain the right of way over and across the lands needed for the construction of any railroad, and all necessary sites and grounds for depots, shops, and other buildings requisite for the proper carrying on of the business to be transacted, by proceeding as in this title provided.

By section 14 it is provided that the corporation shall present to the judge of the district court in any county through which said railroad line runs, a petition setting forth a description of the enterprise to be prosecuted, the termini thereof, the counties through which the same is to run, and a general description of the land, property, and real estate which it will be necessary to appropriate, take, or use for the purposes of said enterprise, together with the names of the owners of any such property, if known.

By section 15, upon the presentation of such petition the judge shall appoint three disinterested residents of any of the counties named in said petition commissioners to meet at some point on the line of said improvement on a day specified by said judge, and to inquire touching the matters contained in said petition.

Section 16 authorizes the commissioners to adjourn from day to day, and to such places on the line of improvement as they deem proper.

By section 18 at least five days' notice of the first meeting of said commission is required to be given in all cases, except that non-residents of the counties through which the road is to be constructed may be notified by publication.

Section 19 requires the commissioners to meet at the time and place mentioned in the notice, and to proceed to examine the line of railroad, and the lands, property, or real estate which will be damaged, taken, appropriated, or used by or for the purposes of said enterprise, and described in said petition, and shall hear the allegations and testimony of all parties interested, and proceed to make in each case a separate assessment of damages to each person, etc., and shall determine and appraise to the owners of said land, etc., proposed to be taken, the amount of damages arising to them, respectively, from the taking thereof, after making due allowance for any benefit that such owners may respectively derive from the railroad aforesaid.

Section 20 makes it the duty of the commissioners, within three months after completing their examination, etc., to file their report and other documents, together with a map showing the route of the railroad, in the office of the clerk of the court to which application for their appointment was made, and to give the same notice of the filing of said report as of their first meeting.

Section 21 prescribes the mode of paying the damages, and the effect of such payments in estopping the parties receiving the same from all further claims or proceedings in the premises; and further provides that payments to persons refusing to receive the same when tendered, shall be made by depositing the same with the clerk of said court, to be paid out under the direction of the judge thereof, such deposit to have the same effect as aforesaid.

Section 22 provides that appeals from the assessments made by the commissioners may be taken and prosecuted in the court where the report of said commissioners is filed, by any party interested, and a written notice of such appeal shall be served upon the appellee, in the same manner as a summons in a civil action is served; such notice to be given at least 20 days before the hearing, and the appeal to be taken within 30 days from the time of notification of the filing of the report.

By section 23 it is enacted that the construction of such road, or the prosecution of such improvement, shall not be hindered, delayed, or prevented by the prosecution of any appeal, provided the corporation execute and file with the clerk of the court, in which the appeal is pending, a bond to be approved by said clerk, with sufficient sureties, conditioned that the persons executing the same shall pay whatever amount may be required by the judgment of the court therein, and abide any rule or order of the court in relation to the matter in controversy.

Section 24...