#### Eastern Railway Company of Minnesota, Respondent, vs. McCord and another, Appellants.

*May 8*

September *29, 1908.*

*Railroads: Condemnation of land: Conditions precedent: Statutes: Certificate of Railroad Commission: Construction of part of line.*

1. Tlie provision of sec. 1831, Stats. (1898), making it a condition precedent to the right to condemn land for a proposed extension of a railroad that the route of such extension shall he designated hy resolution of the board of directors of the railroad company, is not abrogated by ch. 454, Laws of 1907, providing for the obtaining from the Railroad Commission of a certificate of convenience and necessity.

2. A certificate by the Railroad Commission to the effect that public convenience and necessity require the construction of a railroad between certain specified points and that the Commission has authorized its construction, and “that the portion thereof covered by this certificate is” a small part only of the line between the points named, is contradictory and void. No power is given to the Commission by sec. 1797 — 51, Stats. (Laws of 1907, ch. 454), or otherwise, to authorize the building of a part only of a railroad which it has certified to be required by public convenience and necessity.

Appeal from an order of the circuit court for Douglas county: A. J. Vinje, Circuit Judge.

*Reversed.*

A proceeding, upon the petition of the *Eastern Railway Company of Minnesota,*to condemn lands for its use as a railroad, A portion of the lands so sought to be acquired front on St. Louis Bay, which is connected with Lake Superior. The petition alleges that the railway company has complied with the conditions imposed by statute to entitle it to condemn lands for its use in conducting its transportation business in this state; that it is building an extension of its railroad; that it needs these lands for such extension of its main line, and for yards, stations, sidetracks, buildings, and building grounds, and to make connection with other railroads ; and that it intends in good faith to use these lands for *250snob, railroad purposes. It is also averred that it has theretofore made application to the Railroad Commission of Wisconsin and taken such -steps as authorize the Commission to determine the question of the public convenience and necessity of constructing the proposed extension of its railroad, and that such Commission has issued to it a certificate that public *convenience*and necessity require the construction of the extension of its railroad, and has authorized its construction over the following line:

“Commencing at the bridge of the Duluth *&*Superior Bridge Company, which connects Rice’s Point in the state of Minnesota with Connor’s Point in the state of Wisconsin, thence in a general easterly direction down the bay shore of the Bay of Superior and terminating at or near Pouilliot avenue in the town site of Middleton, city of Superior, and that the portion thereof covered by this certificate is between said Pouilliot avenue and E street in Roy’s addition to the city of Superior, as shown by map attached to said application, marked 'Exhibit 3/ and now on file with this Commission.”

It appears that the company has surveyed other proposed extensions which connect with its existing line of railroad, but no other steps have been taken to establish and construct such proposed extensions. The line of the proposed extension covered by the certificate of the Railroad Commission has no direct physical connection with petitioner’s route as heretofore constructed by it. The board of directors of the petitioner has not passed, as prescribed by statute, a' resolution designating the route of its proposed extension, either of the part embraced in the certificate of the Railroad Commission or of the parts which it has surveyed and proposes to construct.

The circuit court found that the petitioner had complied with the conditions precedent to entitling it to condemn the land over the route as located in the Railroad Oommission’3 certificate of convenience and necessity and which it seeks *251to secure for its railroad, appointed commissioners to ascertain and appraise tbe compensation to be made to tbe owners and persons interested in tbe real estate described in tbe condemnation, and to perform tbe duties imposed on tbem by law. Tbis is an appeal from sucb order.

For tbe appellants there was a brief by *Luse, Powell & Luse,*attorneys for *McCord,*and by *J. B. Arnold & B. A. Arnold,*attorneys for *Hibbard,*and tbe cause was argued orally by *L. K. Luse.*

*J. A. Murphy,*for tbe respondent.

Tbe following opinion was filed June 5, 1908:

SiebecKee, J.

The appellants, as owners of land which petitioner seelcs to condemn for railroad uses, aver that petitioner is not authorized to take their lands for railroad purposes, because it has not complied with tbe statutory requirements to entitle it to exercise tbe right of eminent domain. They aver that petitioner has not, by resolution of its board of directors, designated tbe route of tbe proposed extension of tbe railroad, as prescribed by tbe statute (sec. 1831, Stats. 1898). Tbe statute provides that to authorize petitioner to extend its roád from any point named in its charter or articles of organization tbis step shall be taken by tbe board of directors. Tbe railroad company denies that tbis is a necessary condition precedent and asserts that tbis requirement is abrogated by tbe provisions of cb. 454, Laws of 1907, regulating tbe construction and operation of railroads. It is contended that tbis chapter (cb. 454, Laws of 1907) supplants and abrogates the section requiring that tbe route of a proposed extension shall be designated by resolution of tbe board of directors, entered of record, and filed with the secretary of state, and that tbe construction of branches and extensions of railroads is now wholly controlled by tbe provisions of tbis chapter. Tbis chapter does not specify tbe steps to be taken in place of tbe requirements imposed on railroad companies *252by secs. 1831 and 1820, Stats. (1898), by which the railroad company declares its purpose to construct extensions or branches and secures certain rig]its and privileges. True, ch. 454, Laws of 1901, enacts that no railroad company shall exercise the powers conferred by law, or begin the construction of a line of railroad as proposed in its charter, or extend its line, or build extensions or branches connected therewith ■or any line of railroad whatsoever, until it shall have obtained the certificate of the Railroad Commission that public ■convenience and necessity require it; and that the application to the Commission for such certificate shall be accompanied by maps and profiles of the proposed route, that notice thereof shall be given to interested parties, that the certificate and maps shall be filed as directed, that such steps shall be conditions precedent to the right of the railroad company to institute and maintain condemnation proceedings, and that an appeal for review may be taken from the action of the Commission to the Dane county circuit court; yet we find no provision or provisions taking the place of the conditions imposed by secs. 1831 and 1820, Stats. (1898), by which the railroad •company, by its properly constituted authority, the board of ■directors, must declare its purpose to undertake the construction of branches and extensions of its railroad and to secure the privileges conferred by law. This step is very essential •in order that it may assume the obligation and inform the ■state of its intention to accept the rights and perform the duties of a common carrier and that it proposes to conduct this public business over such designated branches and extensions. The steps to be taken by it, under ch. 454, Laws ■of 1901, to secure a certificate of convenience and necessity, are not an equivalent of the act of the board of directors under sec. 1831, State. (1898), to obtain these rights. The •conditions imposed by this chapter are designed to protect the public against the building of unnecessary roads and to secure advantageous location of those which are deemed nec•essary for the public purposes, and are precedent to securing *253the privilege of doing a railroad business. Since the company has not complied with the conditions of secs. 1831 and 1820, Stats. (1898), appellants, as property owners whose land is sought to he condemned for the use of the railroad, can insist that this proceeding to condemn and take their property for such use he dismissed. It follows that the order of the circuit court appointing commissioners to appraise the lands in question is erroneous and must he reversed, with directions to dismiss the application.

Counsel have fully presented the question of the sufficiency of the certificate of convenience and necessity as granted hy the Eailroad Commission. The certificate declares that such convenience and necessity require the construction of a railroad commencing at the bridge described therein, and thence to a point at or near Pouilliot avenue, and then certifies “that the portion thereof covered hy this certificate is between said Pouilliot avenue and E street in Eov’s addition to the city of Superior, as shown hy map attached.” The two parts of the certificate are contradictory. The first part certifies to the necessity of an extension of the railroad over the whole distance between the points first located, while the last part covers only a small part of the line authorized to he built between the two points specified. It is averred by the petitioner that the certificate authorizes construction of the whole extension, and the latter clause in the certificate authorizes the building of a part of it at this time. We find no authority for such a certificate. The only authority granted the Commission to issue a certificate for part of a proposed railroad is that conferred by sec. 1197 — 51, Stats. (Laws of 1907, ch. 454). This section, however, confers no authority to authorize the building of only a part of a railroad which the Commission has certified to be required for public convenience and necessity. We think the' certificate is fatally defective in this respect and this renders it void.

Many other questions respecting the scope and conclusive*254ness of the certificate, as to the questions involved in the proceeding before the Commission for its issuance, and as to the provisions of ch. 454, Laws of 1907, as abrogating conditions precedent to the right of instituting condemnation proceedings theretofore imposed by statute, and also the right of the petitioner to construct its road so as to seriously impair or to deprive owners of land fronting on St. Louis Bay of their riparian rights, have been presented. Determination of any of these questions is not required to dispose of the questions involved in this appeal and we do not therefore decide them.

*By the Court.*— The order appealed from is reversed, and the cause remanded to the circuit court with directions to enter an order dismissing the application to institute and maintain condemnation proceedings.

MaRSHael, J., took no part.

A motion for a rehearing was denied September 29, 1908.