Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-11-17
MOORHEAD CROSSING

junction Sued Out by the Northern Pacific
Company-The st. Paul s. Manitoba Com
pany Can Only Obtain the Right of Cross
ing Through Proceedings for Condemua-
ton Under the Laws of Minnesota.
United States circuit court, district Of Min
nesota-the Northern Pacific Railroad compa-
ny Vs. the Barnesville & Moorhead Railroad
company ct. al. Motion to dissolve prelimi-
nary Injunction. Gilman q ClOugh for
plaintiff; Bigelow. Flandrau & Clark for de-
PENDANTS Memorandum-Nelson, j. It is
well settled that the attempt to take perma-
nent possession of land for public use with
out the assent of the owner, express or implied,
and without payment or tender of damages in
advance would, if contaminated, be in the ma
ture of an irreparable injury, to prevent which
an injunction will ordinarily be granted. (See
High on Injunctions, Sec, S9I-30th Wis. Rep.
1912 Dillon $780,
The answer of the defendants does not DENY
that such attempt was made, and the allega-
tiOns of the bill in that respect are not fully
met so as to warrant the enforcement of the
general rule; that when all the equities of the
bill are fully denied by the answer the injunc-
tion muat fall.
The charter of the Northern Pacific railroad
company (Sec. y authorizes the company to
enter upon the land necessary for the construc-
| ton and working of its road, not to exceed 200
| feet in width on each side of the line; and in
| case the owner of the land and the company
cannot agree as to the value of the premises
| taken, provision is made for an appraisal to
be initiated by either party. Usually, the rail-
road company only is authorized to commence
proceedings. When the company, under such
| charter, takes possession of land for construc-
| ton before proceedings are commenced to as
| certain the compensation to be paid, it is not
trespasser. and an injunction even would not
| be allowed to prevent the construction
of its road Mills on Eminent
Domain, see 80 and authorities cited. J
| This rule, however, would not prevail where
| the right of eminent domain is granted to cor
porations by the legislature of State
whose constitution requires compensation to
be first paid or secured before the property is
| taken.
| The right of eminent domain is conferred
| upon the plaintiff by Congress under the con-
stitution of the United States. The State of
Minnesota assented to the right to SO exercise
it (see act of Minnesota legislature of March 2,
| 1860.
| Under the constitution of the United States
| Just compensation where private property is
| taken for public use is not, in terms, required
/ to be made before entry. Authorities are
numerous thst the party condemning may
thus enter even where no right is given by the
charter to the owner to initiate proceedings
for assessment of damages.
But think the facts in this case. aside from
the law as laid down, show waiver of pay
ment in advance of the entry and construction
of the road by Edward Schriber. the owner,
| and his heirs.
The route OF the Northern Pacific rail.
road company was finally located over the
| locus in quo November 81, 1871. Edward
Schriber purchased it the January previous
! from the government. The railroad was con-
struoted in the summer of 1872. There was
| no person living upon the premises at tie
time, and it was uncultivated. The land be-
ing vacant at the time of entry by the plain
| tiff, On the definite location of the route, and
the owner residing in the State of Pennsylva-
mia, would not the clause in the company s
charter, which authorizes it to enter upon va
cant and unoccupied land, justify the entry
But conceding it would not yet when the en-
| try was made, and the road in operation, an
| acquiescence for the shortest period is suffi-
cient to warrant belief that the owner in.
tends to waive all claims except, perhaps, for
the damages, which could be assessed as well
after as before entry. Certainly the earliest
notification to the company, according to the
averments of the answer, was long after the
| construction by the plaintiff of its road over
the land, and, though it is alleged in the an
swer that neither Edward Schriber in his life
time, nor his heirs, knew until 1878 that the
plaintiff had constructed its road
over this land, still, up to
| the time of the conveyance of their
interest in the strip which crosses the Northern
|
plaintiff that they held it responsible for the
| trespass and use of the land, and have never
commenced any proceedings to assert their
rights.
The plaintiff has been in possession of the
land since November 1871, and operating its
| road since 1872. Under such circumstances q
| license is implied.
It is conceded-.by defendants counsel that
the GAINESVILLE & Moorhead railroad company,
as owner of a strip purchased FROM Schriber's
heirs, running across complainant's track, and
the land necessary for operating its road, could
not mains ain ejectment. If the company is
not trespasser and cannot be ousted by eject
ment, and an injunction would not ISSUE it
has right of property well as license.
| Its title would be complete and perfect on the
payment of compensation when ascertained.
The plaintiff insists that the right to COM
pensation is barred under section of its
| charter, through default of Schriber or his
heirs to claim such compensation within siz
years after the opening of its road, and author
| tiles are not wanting to sustain this view list
Redfield on r always, page 800 and note); but
it is not necessary to decide this now. Con-
| ceding the right to enforce claim for COM
pensation, the plaintiff still has property in
terest which caa only be taken by the defend
ant deriving title with knowledge of the stu
alton, on strict compliance with the law of
Minnesota. The law does not authorize either
party to initiate proceedings to condemn; it
allows only the one desiring the land.
| No award has been made-no compensation
ascertained. Unless consent or license was
| given to defendants to enter upon plaintiff s
| right of way and track, and construct the
| crossing, in view of the constitution and laws
of Minnesota by virtue of which only can it
exercise the right damages must first be ap-
| praised and paid or secured previous to entry.
| (See Cooley's Constitutional Limitations, title
Eminent Domains 80 Wis, los; 35 Mich, 265
the latter railway crossing case).
| No damages having been appraised. Has
| permission or license been granted 80 as to
| prevent the plaintiff from resisting the occu-
pancy OF its land and track for that purpose
The amended answer of defendants sets up
license to make crossing over plaintiff 8 track,
given by it, and alleges that the plaintiff also
by representations encouraged the building of
defendants road, and gave it to understand
that it would assist in effecting the crossing,
and interpose no objections thereto. The
answer is sworn to by r. B. Angus. James J.
| Hill and A. B. Stickney, and an affidavit sworn
/ to by Il. B. Angus, which was read on the
hearing of the original application for ipjunc-
| ton, purports to give in some detail what
these representations were, and he says Fl. e.
Sargent, the plaintiffs general manager, knew
that the defendant intended to CROSS plaintiff 8
| line, and made no objection to the m amer or
| the point at which said crossing was to be
| made, but at his own request was
furnished by the defendants chief
engineer with a description of said
proposed crossing, and diagram and model of
a frog which would be required at said point
and hot orr Aorr kHa1 nd