St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1885-05-20
AN IMPORTANT DECISION
AS TO the Rights of the City to Exc
tend Streets Across Railroad


Tracks.
In the district court yesterday a decision
by Judges Lochren and Young was filed
which sustains the demurrer of the City of
MINNEAPOLIS in an action brought by the
st. Paul, Minneapolis & Manitoba road 10
restrain the opening and extending OF -FOUR
teenth avenue southeast across It's tracks.
The dispute has been an acrimonious one
between the railroad and city authorltleS,
which has led TO several encounters between
employees of the different parties. The rail-
road company fenced in the tracks and the
distractions have been removed by the city,
only to be replaced. The claim is that
the premises are depot grounds and for
that reason should not be crossed by public
streets. In the complaint it is set forth
that the plaintiff succeeded to certain rights
of the ST. Paul & Pacific company, includ-
ing the right of way 100 feet within
East Minneapolis, extending from the juno
ton depot to the University switch, upon
which are laid two through tracks, over
which pass 100 trains daily. The increaS-
ing business of the road requires also the
immediate construction of other tracks Suf-
ticient to occupy the entire right of way.
Across this right of way the city has laid
and proposes to open Fourteenth avenue
south, to the great detriment of the plain
GS.
THE CITY's SIDE.
Upon the part of the city it is claimed
that the railroad tracks form belt around
the city, and if the present action is MAIN
tanned the result will be to prevent the city
from opening streets and forming cOnnec
tons for the benefit of public travel with
additions lying outside of the belt Of tracks.
THE DECISION.
The court says if the land in question
already appropriated to public use and
the proposed taking of the city is incompat
ible with such present use then this second
appropriation must be restrained. Where
railroad tracks are put to almost cons tant
use it is a great inconvenience to have
them crossed by streets at frequent inter-
walls, and this inconvenience is almost as
great to the public as to the railroad COM
panies. The right of the city to maintain
streets across railroad tracks cannot be
doubted unless such taking is subyerSive to
an already existing easement. Without
legislative authority the city would
not under its charter be authorized to take
for street purposes property already appro-
priated to public use except that the two
uses be compatible. The complaint alleges
needed for public convenience, but this
should be taken as an expression of opinion,
as no sustaining facts are given, and be-
sides, the necessity of laying out streets for
public use is primarily to be determined by
the city authorities, and in the absence of
proof to the contrary the right will be pre-
sumed to have been wisely exercised. If
the proceedings are not regular the plaintiff
may exclude the defendant and without the
remedy sought in this action. Neither can
the amount of compensation be fixed in this
acton. and the only question for the court
to determine is whether the city can legally
Appropriate for street purposes the land al
ready in use by the plaintiff. 1t is alleged
by the plaintiff that if street is needed at
that place it should be carried over and
above the track, concession in
part that -. such a street may
be needed and an indication as
to how and at whose expense it should be
constructed. But this question is foreign
to the issue. Unless the city has the power
to open the proposed street at the point
designated without impairment of its al
ready existing easement, then plaintiff is
entitled to Judgment demanded.
From the authorities cited in the decision
it appears that in cases where lands have
been taken by railroad company for a
special purpose, wherein the exclusive use
seems necessary for the prosecution of its
business, a second taking by a public cor
poration is not permitted without express
legislative authority. But the ordinary
tracks of a railroad do not come within such
exemption, even though the num-
Der of tracks is great and
the passing of trains frequent.
If the ordinary use of railroad track en-
titles the corporation to the immunities
damned by the plaintiff the effect viii be to
cOncsde an exclusive use of this franchise
without any interference but by express
legislative authority. If line of distinc
ton is to be established it must be upon the
nature of the use to which the property is
put The court does not think the facts in
this case, as stated. are such as to entitle the
plaintiff to the relief prayed for and there
fore the defendants demurrer to the COM
plant is sustained. Ordered ace ordingly.