St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-02-25
THE RAILROAD WINS.
The Court Holds the Northern Pacific
May Gross the University
Grounds.
No Obstruction in the Title, and the
Nuisance Allegation Does
Not Hold.
Judge Lochren Dfssents, Holding
Legislative Authority Neees-
sary TO the Road.

Legislative Authority Neees-
sary 10 the Road.
The suit of the regents of THE state
university 10 restrain the Northern Pacific
Railway company from eondemning certain
university lands for railroad crossing. yes
terday came TO an end. as far as the district
court is concerned Judges Young and
kOOn have filed decision dismiSsing the
case. TO which Judge LOchren dissents.
The points, in brief, are that the land.
as far as title Is concerned. may properly
be condemned, and that the nuisance ale
cation is not sustained by the evidence.
Judge LOehren does not concur in regard
TO the nuisance, and holds that state prop
erty cannot be taken without legislative
authority.
THE MATTER OF TITLE.
The court finds equitable title to the lots
Of block Is in the regents. but legal title in
John ). Pillsbury. and the defendant was
justified in serving summons upon Pills
bury. The regents hold the property in
trust for the interests of the state and not
adversely 10 those interests, therefore the
court holds the proceedings in the service
upon the State OF Minnesota and the APP
pearance OF the attorney general, judicial
necessity for taking the property named in
the petition. The evidence fails to show
the appropriation for any purpose whatever
OF the lots in question.
That plaintiff having had knowledge OF the
purchase OF said property in the manner
stated, and of the condition OF the title
thereto, and that the legal title was in John
). Plllsbury, and had been so taken to facil-
tate the sale OF said property, or so much as
the said grantee might choose 10 sell. and
plaintiff with such knowledge having failed
10 set apart any portion Of said property for
any specified purpose whatever, but allowed
the title TO remain in said Pillsbury, and due
notice OF the condemnation proceedings
mentioned have been served upon the owners
Of said property, as the title appeared on
record the court acquired jurisdiction of said
property in said proceedings, notwithstand
ing plaintiffs equitable rights in said prop
ertT, and plaintiff cannot question such iur-
isdictiOn, because plaintiff was not in such
proceedings designated as the owner of said
property, nor upon the ground that there is
no provision in our statutes by virtue OF
which the courts can acquire Jurisdiction OF
the state.
There was nothing so far as the action of
the regents was concerned which would have
prevented the holder of the legal title TO said
lots from selling the same at their option and
turning the proceeds Of such sales over 10
plaintiff.
The rule is well settled that when property
has been appropriated TO public use the
same cannot be taken for another in different
public use, and one which should be subver-
sive OF the first use stated, but TO give this
rule application il must be made 10 appear
there has been an actual appropriation TO
public use, or at least there must be a con-
templated appropriation. There is no such
showing in the case at bar.
THE NUISANCE QUESTION
was reviewed At length and the court held
the regents, 10 sustain their point, must
produce competent evidence To show the
proposed road would be a nuisance.
A railroad is a public Improvement and
not a nuisance per sc, and therefore the
plaintiff to obtain the relief sought must
show IL would destroy or prevent the con-
venient use TO which plaintiffs property was
TO be put under laws of the state. The court
holds the slight Inconvenience to students
aud professors TO be trivial. So far as the
operation OF defendants road would 10 some
extent disturb class recitations in the uni
versity, by the reason of noise caused by the
running of trains, the rights Of plaintiff are
no greater than the rights of public schools
and courts, where freedom from outside dis
turhance is desirable, but if all noise arising
from the legitimate use of the public streets
or private property, such as manufactures.
shops. mills, etc, can be abated as public
nuisances because, perchance, classes in
schools or the courts are slightly disturbed
by such noise, the administration of the law.
calculated TO be salutary in its operations
might be made oppressive and unjust, and
thus come short OF the contemplated purpose
and in the case at bar il the operation OF de
PENDANTS road can be restrained, then we see
no reason why the operation of the Manitoba
railroad may not also be- restrained, as the
evidence shows that the latter more seriously
affects plaintiff in the use Of its property
than the former will when constructed.
The evidence, therefore. does not show that
the disturbance of the class recitatiOnS which
will probably result from the operations OF
defendants road viii be such as TO Justify
the court in restraining the defendant from
constructing and operating such road.
THE OBSERVATORY.
In order to entitle plaintiff to the relief
prayed for upon the ground that the opera
ton OF defendants road will prevent the
use of plaintiffs property for the purpose
of an astronomical observatory, it must APP
pear:
First-That the property of plaintiff Is. un-
der all the conditions now existing. adopted
TO such use: and, second, that the anticipated
injury will be reasonably certain; for IL such
injury is uncertain, indefinite or contingent,
the court will not interfere.
We are satisfied. from the evidence of the
scientific witness on this point, that the oper-
alton of the ST. Paul i Manitoba railroad
through the campus of plaintiff renders il en-
tirely impracticable To construct upon any
part of said campus a frst-class observatory,
and, therefore, we must conclude that the
regents do not, in view OF these conditions.
| contemplate the construction of such obser-
vatOry.
/ The evidence shows that the only observa-
/ tory which is practicable TO construct upon
/ said campus is one for student work in con
uectiOn with the university, and that the
operations of defendants proposed road will
not prevent or in any material degree inter
/ fere with the use Of such an observatory;
that the facts as found do not entitle plain
/ till 10 the relief prayed for in the complaint
| upon any of the grounds therein assigned,
and IL follows that the action must be dis
missed.
THE DISSENTING OPINION
/ of Judge LOchren is based on the belief
that railroad corporations can not only &C
/ quire lands by grant. but they can take
private property under the delegated power
of eminent domain pursuant to the statute.
Public property they cannot touch without
express legislative authority. He also
thinks the claim Of nuisance well founded
and deems the interruption Of classes a
/ serious matter. He concludes:
Admitting that defendants railway, from
! its greater distance from the present main
building and its location in a deep cut will
be less of a nuisance to classes in this build
| ing than the Manitoba railway now is, no ar
gument in favor of defendant can be based on
such admission. Because the institution is
afflicted with present nuisance, is no good
reason for insisting that il shall suffer an adj
ditioDal nuisance, because il is not as great
as the present one. And the argument that
the new nuisance is even less than the old is
based on the false idea that the work of the
university IS TO be always confined TO its
present main buildings. Its expansion will
/ require new building. which must occupy