Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1886-02-11
THE COMMISSION DECLINES.
Between the Northwestern and the
Nilwaukee Relative to the YanktOn

Crossing.
The action of the railroad condemna.
ton commission in connection with the
crossing contest between the North
western and the Milwaukee railroad
companies was briefly outlined yester-
day in the announcement that the COM
had declined to act in the pre-
misses.
Last fall Judge Edgerton appointed
j. A. Peirson, j. E. Bruce and VIM. Van
Osdel a commission for the appraisement
and condemnation of right of way
needed by the Northwestern
road in Yankton county which
its owners refused to surrender to the
company for an agreed compensation.
This commission performed its duty In
the territory along the main track of the
Northwestern between the eastern
boundary line of the county and the
round house, and along the side
tracks already laid about the
depot in this.city. 1t yet has some un-
finished work between the round house
and the western limits of the city.
The Milwaukee company having re-
used to permit the Northwestern COM
pany to cross it's main track IN this
city for the purpose of establishing a
side track to reach establishments
largely engaged in the shipping bust
ness, the commission aforesaid was call
ed upon, after the form of the statutes,
to perform the work of appraisement
and condemnation incumbent upon it
under the statutes and its appointment by
the court as a commission. The law which
proviT es for the appointment of COM
missions in such cases says the free
holders SO appointed shall be the COM
'missioners to assess all the damages
to the owners of real property
in said county" This clearly covers
the right of the commission as appoint
ed to act In the particular case under
discussion.
The section Of the law under which it
was proposed to proceed reads as follows
(section 450 civil code):
Every railroad corporation shall have
power to cross, intersect, join, and unite
it's railroad with any other railroad be-
fore constructed at any point on its
route and upon the grounds of such
other railroad corporation, with the
necessary t%urnouts, sidings, and
switches, and other ~conveniences IN
furtherance of the objects of its connec.
ton. And every corporation whose rail-
road is or shall hereafter be intersectea
oy any new railroad, shall unite with
the owners of such new railroad in form
ing such intersection and connections
and grant the facilities aforesaid; and ii
the two corporations cannot agree upon
the amount of compensation to be made
therefor, or the points and manner OF
such crossings and connections, the same
shall be ascertained aud determined by
commissioners, to be selected as provid.
ed in this article in respect to taking o.
lands.
1t will be seen that the law under
which it was proposed to proceed ap
| plies to railroad corporations the SAM
as to private individuals. The only way
in which the Northwestern could
proceed after the refusal Of
the Milwaukee to permit the crossing
| was by condemnation. After the expira'
| ton of the time required for the lega.
| notification the aforesaid commission
met at the Office of the clerk of the .our'
for Yankton county and prepared to in
stitute proceedings. The two railroad
companies appeared before them b,
their attorneys, R. B. Trip for the Mil
waukee aud George 81. HAND
for the Northwestern. The Mil
waukee interposed an objection
to the proceedings Of the commission il
the form of an affidavit. In this docu
ment it was held that the Northwestern
by its contemplated act, would becom'
trespassers. 1t was also held that j. L
Bruce, by being a stakeholder in tn
pork packing company was an interest
ed party, as the company had large ship
meuts to make over the two railroade
It was further held that j. A. Piersol
was interested as q shipper, being q mel
chant and q cattle dealer; that h
was opposed to the Milwaukee com
panv's interests and that his store wa
head quarters for the enemies of tn
road. This ia, in substance, the efec
of the affidavit.
Whereupon the commission decline
to act in the premises and as o sequenc
to their d~eclination q new commisslo
must be appointed by Judge Trip
r who arrived this afternoon.
j Nothing can be discovered in the la
prohibiting these gentlemen from actin
The Northwestern company promised
. assume all liability under the allegatlc
l of trespass. There is a clause in sectic
452 otsthe civil code, which says that
member of an appraisement eommissle
must be interested in q like question
but this clause would not d~lsqnalify th
a commission, as its members are not j
terested in any pending settlement
b right of way matters. Further, the ID
y provides for an appeal by either par
from the determination of an appraiE
d ment commission and a trial of the ca
before o jury and for q further appeal
the supreme court. So the act of the CO
y mission need not be final, except by &C
as sent of the parties interested.
Thus the crossing war remains as
!. was and a delay in conclusions