Winona & St. Peter R. R. Co. v. Denman
| Decision Date | 01 January 1865 |
| Citation | 10 Minn. 208 |
| Parties | THE WINONA & ST. PETER RAILROAD COMPANY vs. JACOB S. DENMAN et al. |
| Court | Minnesota Supreme Court |
This was a proceeding taken by the railroad company under its charter, to obtain right of way over a strip of land through respondents' farm, composed of several contiguous governmental subdivisions. On the petition of the company, the district court made an order determining the title to the strip desired to be taken, to be in respondents, and appointing three commissioners to ascertain the compensation to be paid for taking it. From the decision of the commissioners, the company appealed to the district court, where there was a trial by jury, who found the value of the strip to be $258.38, and the damages beyond that to be $500. The company moved for a new trial, and from the motion denying it the company appealed to this court.
The questions involved and how they arose, appear from the opinion.
Points and authorities for appellant: —
1. The court erred in allowing the witness Denman to testify for the purpose of laying a foundation for the recovery of damages, that he owned a greater quantity of land than was described in the petition of the appellant, the title to which had not been previously ascertained and determined by the court. First, in this proceeding the jurisdiction of the district court is simply appellate, and its proceeding is governed in all respects as upon appeal from courts of justices of the peace. Laws of 1855, ch. 27, § 5, Second, on an appeal from courts of justices of the peace, no issues can be tried, except those tried in the court below. Comp. Stat. ch. 59, § 127. A party claiming damage to a piece of land described in the proceedings below, cannot, in the appellate court, claim damages in addition thereto, done to other pieces not so described, although the several pieces may be occupied as one farm. Third, the commissioners had no right or authority to award damages to the respondents, upon any lands not described in the petition. The court had not ascertained the title to any other lands, and could only award damages to the parties for the title to, or interest in, the lands proposed to be taken, according to the extent of title to or interest in the same, which the court had ascertained they severally possessed. Laws of 1855, ch. 27, § 5; The Canandaigua and Niagara Falls Railroad Co. v. Payne, 16 Barb. 273. If the respondents were damaged, or claimed to be damaged in lands other than those described in the petition, it was at least their duty to appear before the court upon the presentation of the petition, and, before the commissioners were appointed, make their claim, satisfy the court of their title to or interest in such other lands, and have the petition amended so as to embrace the same, or have the same embraced in the order of the court. And not having done so, they must be deemed to have waived the assessment of damages, as to such other lands in their proceedings, and should not have been allowed to include them in such assessment upon the trial in the district court.
2. The court erred in holding and deciding that the land taken must be paid for in money, and that no benefits, general or special, could be set off against the value of the land taken, and that so much of the company's charter as allows benefits to be offset against the value of the land taken, is in conflict with the federal constitution. First, private property can only be taken for public use. Embury v. Conner, 3 N. Y. 511. Second, under constitutions like the federal, in so far as the right to take private property for public use is concerned, the public have the constitutional authority to take, hold, and convey, the fee. Rexford v. Knight, 15 Barb. 627; Heyward et al. v. The Mayor, Aldermen and Commonalty of the City of New York, 7 N. Y. 314; Rexford v. Knight, 11 N. Y. 314. Third, where the fee is taken for public purposes, the benefits accruing to the owner from the construction of the improvement, in the enhanced value of the land, a part of which is taken, or of that which lies contiguous to and connected therewith, may be constitutionally set off against the value of the land so taken, as well as against the damages arising from such taking, to that portion of the land not taken. Rexford v. Knight, 15 Barb. 627. Fourth, in the case at bar the fee of the land is not taken for the use of the public. By the terms of the company's charter, only an easement is acquired. Laws of 1855, ch. 27, §§ 4 and 5. Fifth, the rights of the respondents to, and authority and control over, the lands upon which the easement is imposed, are unimpaired as against all persons, except the company, and they cannot use it for any purpose inconsistent with the enjoyment of the easement acquired. Barclay v. Howell's Lessee, 6 Pet. 498; In the matter of John and Cherry Streets, in the City of New York, 19 Wend. 659, 666; 3 Kent Com. 432-3, and cases there cited. The respondents, being the owners of the soil, have a right to all ordinary remedies for the freehold. They may maintain an action of ejectment for encroachments upon it, or an assize if disseized of it, or trespass against any person who digs up the soil or cuts down any trees growing upon it. The freehold and profits belong to them. They may carry water in pipes under it, and have every use and remedy that is consistent with the servitude or easements of the company over it. Sixth, in a case like this, the question is not, what is the value of the land taken? but, what damage has or will the owner sustain by reason of the imposition of the easement upon it. The act sounds in damages only; and the mode prescribed in the company's charter (§ 5, ch. 27, Laws of 1855) for estimating the same, is not in conflict with or in violation of any provision of the federal constitution. Rexford v. Knight, 15 Barb. 627; McMasters v. The Commonwealth, 3 Watts, 294; Commonwealth v. Coombs, 2 Mass. 491; Same v. Sessions of Norfolk, 5 Mass. 436; Same v. Sessions of Middlesex, 9 Mass. 388; Betts v. The City of Williamsburgh, 15 Barb. 256; Livingston v. Mayor of New York, 8 Wend. 85; Dwight et al. v. County Com'rs of Hampden, 11 Cush. 201; Pennsylvania Railroad v. Hiester, McClure & Reiley, 8 Penn. St. 445; Livermore v. Town of Jamaica, 23 Vt. 361; Matter of Furman Street, 17 Wend. 650, 670; Matter of William and Anthony Streets, 19 Wend. 690; Troy and Boston Railroad Co. v. Lee, 13 Barb. 169; Niagara Falls Railroad Co. v. Payne, 16 Barb. 273; Smith Com. on Const. 469, et seq.; McIntire v. The State, 5 Blackf. 384; The State v. Digby, 5 Blackf. 543; Indiana Central Railroad Co. v. Hunter, 8 Ind. 74. The rule for measuring the damages prescribed in the charter, and sustained by the cases referred to, is by no means new or peculiar. It is only the common law rule extended to the assessment of damages prospectively. What is the market value of the entire piece of property in the absence of the improvement? And what will it be when such improvement is made? And if the whole property will be as valuable after the improvement is made, or the road is constructed, as it was before, then the party is entitled to no damages, and if not, then to the amount in which the same will be depreciated.
3. The court did not err in holding and deciding that as to damages, beyond the value of the land actually taken, the jury might deduct therefrom any general benefits to respondents arising from the construction of the railroad. See cases before cited.
4. The court erred in allowing the witness Denman and other witnesses, to testify as to any additional fences that might be made necessary by the construction of the railroad, and the cost of building the same, as an item of damages allowable to the respondents. First, at common law, the proprietor of land is not obliged to fence it. That obligation is only imposed by prescription or contract, or by statute. Wells v. Howell, 19 Johns. 385; Rusl. v. Low et al. 6 Mass. 90. This principle has equal application to the owners of land adjoining public highways; and where no statutes exist and no obligation is imposed by covenant or prescription, a railroad company is not bound to fence their land. Hurd v. Rutland and Burlington R. R. Co. 25 Vt. 116; Morse v. Same, 27 Vt. 49. So it follows that a party cannot recover damages for that which he is not legally bound to do or suffer. Second, by sec. 19, of ch. 3, of the Laws of 1857, it was provided upon this subject, that the company should "construct and maintain a good and substantial board and rail fence, four and one-half feet high, on both sides of their road." This statute is not declaratory of any principle known to the common law, but imposes a duty and an obligation upon the company entirely unknown to that law, and under it, as a matter of course, no party would be entitled to have damages assessed against the company on account of fences. Third, by sec. 4, of ch. 19, of the Laws of 1862, it is provided: "That whenever the owner or occupant of any land through which said road shall pass, or adjoining the line of said road, shall enclose with a fence his or her lands, bounded in part by said road, said company shall construct and maintain its portion of the same, in the same manner that individuals are, or may be required by law, to erect and maintain partition fences, and all fences erected on the line of said road by said company, or by the owners or occupants of lands along the line thereof, shall be considered partition fences, and be, in all respects, governed by the laws in force regulating the same." And by sec. 13, of the same chapter, all acts or parts of acts inconsistent with or repugnant to the provisions thereof, are repealed. It would seem, from this mode of legislation upon the subject, that the legislature intended to relieve the company from a portion of the burden, in this regard, which it had imposed upon them by ...
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