St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1885-11-05
THE RAILROAD WINS
I'm the Shit of the Regents over
RightOf WAY.

XII the SHIT Oh the Regents over
Right OF WAY.
The supreme court yesterday sent in an
opinion in the case of the state university
regents against the Northern Pacific Rail-
way company in tine condemnation proceed
lngS 10 acquire right OF way, Ill when the
opinion of the lower court TaVoring the rail-
road is sustained. The action was the one
brought by the regents to prevent cOndem-
nation proceedings, on the ground That the
land was owned by a state institution and
could not be acquired in this way. The
other suit now pending in the Hennepin
district court. is not directly connected
with the one decided yesterday, though it
is said that the decision yesterday cannot
fail to have some bearing in the other. 1t
was limited in the attorney generals Office
that a motion for new arguments before
The supreme court would be made, though
the statement is not official The decision
was spoken of by attorneys yesterday as a
big victory for the railroad. Following is
the opinion in full:
THE OPINION.
This is an appeal from the district court of
Hennepin county, appointing commissioners
10 appraise damages upon the petition of the
respondent railway company, General Stat
utes 1873, chapter 81, section II.
Such order is final order in q special pro-
ceeding, and hence appealable. Among other
things it determines that the lands proposed
TO be taken were required and necessary for
the proposed improvement. This question
so determined would not arise or be cousid-
cred in the course of ans subsequent proceed
ings, but was determined once for all. and
affected substantiaton right. In re Jones
rs Nebraska $50.
Upon the merits, the first question of the
appellant, the State of Minnesota, TO dismiss
the petition on the ground that it was not
made to appear that the public interests. re-
quired the prosecuting OF the enterprise.
The controversy grows Out Of the attempt
. 10y the company to appropriate certain lands
belonging to the University of Minnesota,
situated on the line of the proposed route of
the road. The only lands, however, included
IN the petition. which appear TO belong to the
university, are certain lots in Regents addi-
ton to Minneapolis. These lots are not used
or held for public purposes by the state, and
are not contiguous to the university grounds
and are liable 10 DE appropriated in the same
manner US lands OF private persons. General
Statutes 1873, chapter 81, section Is. No
good reason, therefore, appeared why they
might not he taken for public use by the
railway company il reasonably necessary
therefor, and the necessity or prOpriety Of
appropriating these particular lots does not
seem to be questioned if the enterprise is to
proceed. The court, it appears upon the
hearing of the petition, was satisfied that the
the enterprise and we think there was suti-
Gent prma facie case made to
sustain such determination. The court
was entitled TO consider as to
the nature of the enterprise as disclosed by
the record the location. termini and extent of
the line as well as the evidence before it OF
the expenditures and improvements already
made, and the facilities for business possessed
by the company. 1t would also take judicial
notice Of things generally known to the
public, such Us the general development Of
commercial interests, and the increase of
trade and travel, in determining the question
OF the propriety or Importance of extending
the proposed line Of road. 1t is unnecessary,
therefore, for us to discuss or determine in
this case the point raised by the respondents
counsel in argument, whether the legislature
has in fact delegated or could delegate to
the courts the power to determine in what
cases the right of eminent domain may be
exercised by railway corporation, organized
under and in pursuance OF chapter 81, title l.
General Statute, with the powers thereby
granted in other words, to determine
whether such corporation may be
permitted TO prosecute the enterprise
Tor which ii vas organized. This is not con-
sidered, whether, however, the use for which
lands are sought to be taken in such cases is
Il public use, and whether they are reasona-
bly, necessary or required therefor by the
corporation, or whether Il proposed public
use be inconsistent with or subversive of a
public use to which particular lands sought
10 be appropriated had already been dedi-
Gated; these are undoubtedly questions for
the court and so far as the determination
thereof may affect the prosecution of pro-
posed enterprise it will to that extent be under
the control of the court. Railroad Company
VS.. Davis, 43 New York, 1877; New York Cen
trail Railroad VS.. MIG. l.. Co, 63 New YorI1 49, {;
in New York Central Railroad, Sc New York,
40I; City OF st. Paul VS.. Union Depot, 80 Min
states that certain other lots embraced therein
and adjoining the grounds occupied by the
university, though appearing of record to be
owned by one of the regents in
dividually, is in fact the property
of the university. This was denied
by the petitioners and was not established
upon the hearing. as respects the university:
therefore, no cause was shown why such
lands might not be taken. The regents, how
ever, insisted that they were entitled to show
and accordingly offered to show that if the
road were constructed on the line proposed,
it would injuriously affect property of the
university required for public use, though
not actually taken or appropriated by re-
spOndent. in these proceedings, and would
greatly impair its usefulness for educational
purposes. The evidence offered was eX-
cluded and the ruling of the court is assigned
for error. We think the court ruled cor
rectly. The mere fact that the lots in Re-
gents addition belonged to the university
gave the state or regents no standing IN court
10 raise such question: for the purpose of
the petition lands not embraced therein or
connected with other lands, sought to be con-
demned as part of one entire contract is not
to be decreed affected by the proceedings, so
as to authorize the owners thereof to
appear and object to the propriety of
granting the petition, BY section Is,
chapter 81, q notice stating the
object OF the petition and containing q
description of the land proposed to be taken,
is to be served on every person named as
owner, incumbrancer, tenant or otherwise
Interested therein. And under section II the
issue as to each party respects the lanes
described which he owns or is interested in.
(See also section 17.) "a cannot object that
''B's" lands are taken, nor raise an issue as
TO other separate and Independent lots or
parcels of land belonging TO him not described
in the petition nor included in the proposed
improvements; since his rights and interests
in such lands are not affected by the con-
domination proceedings. We think, there
fore, that the court properly declined to con-
slider in these proceedings the alleged in
juries 10 outside lands, incident TO the opera
uon of the proposed road. Order affirmed.
VANDERBURGH, J.
CASE OF THE POLICE CLERK