The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-09-29
MILwAUkEEs LEvEE TITLE.
It's Merits VIII Be Tried In the Dis
trict Court.


The other case is that of the city of
st. Paul against the Chicago, Mil
Waukee & st. Paul Railway company,
in which Justice Mitchell rerflanded the
case to the court below to try and de-
termine the issue. whether the priv
1legeS granted to the defendant by or
dinance 286 constitute either in whole
or in part an unlawful misuse of the
property, ard to modify. If necessary,
its order for judgment accordingly.
Judges Start and Buck dissent from
the opinion.
The defendant company had erected
warehouse on the levee property at
the foot of Jackson street. and the main
issue in the court below was whether
the defendant had acquired title to the
premises by adverse possession.
Justice Mitchell says:
"A very little attention seems to have
been paid to the rights, if any, of the
defendant under city ordinance 1885,,
that question having been apparently
brought into the case only incidentally
and almost accidentally On the first
argument Of the appeal in the su-
preme court the discussion was wholly
devoted to what had been the main
issue In the court below. The result
was that we disposed of the ordinance
without much consideration, by merely
saying that 1T amounted to nothing
more than revocation of license.
Upon reargument of the question.
the main point discussed and the one
point considered. was whether the
state had delegated to the city the
authority to enact the ordinance in
question. We held that the ordinance
was invalid, because in excess of the
granted power of the city.
After this opinion was fled counsel
for the defendant applied for further
reargument on the ground that they
had overlooked and failed to call at
tentlon of the court to General Statutes.
section 1880. A further argument was
granted as to the force and effect of
this section"
The title and syllabus of the case are
a S follows:
City of st. Paul, respondent, vs. Chicago,
Milwaukee & st. Paul Railway Company,
appellant.
Where land has been declared to a specific
united and definite public USE the legislature
has no power to destroy the trust or divert
the property to any other purpose inconsistent
with the particular use to which it was dedi-
Gated. The state holds such property not in
proprietary, but in a sovereign capacity, in
trust for the use to which it was dedicated
While much must be left to the discretion Of
the legis lature as to the best manner of reg
ulating that use, yet its power of control
over such property must be exercised in con-
fornity with the purpose of the dedication.
"Ne erection Of warehouse on land dedi-
Gated to pa c use rs q lev,e is not neces-
sarly a misuse OF the property, as such
struc ures may be il aid of the use for which
1t was dedicated. The legislature may also
grant Or authorize the granting to any per-
son or cornoration having traffic with craft
naviga' ng tn cont'cu US w.te the exc US
I've use OF 20 much of a public levee as is
reasonably necessary for .i~ or it's business
with such craft, provided, and so long as, it
does not unreasonatly In erie with III. use
Pint t0 civ
public levee. or any part of it, to railway
company as permanent site for its general
freight warehouse. without reference to it's
traffic with craft navigating the contiguous
waters, would constitute a diversion of the
property to, a use foreign to, and inconsistent
with, that to which it was dedicated.
While the language of General Statutes 1894,
section $3.50, is broad enough to authorize a
city to divert lands held in trust for specific
and particular use to another and inconsist-
ent one. and while the language of Ordi-
nance No. 2S6. Of the city of St. Paul, may
be equally broad, it does not follow that
either is void In toto.
The operation of the statute may be re-
stricted by construction to a grant of au-
thority to municipalities to grant to railway
companies such rights in public grounds, as
the legislature itself might have granted. and
the ordinance although too broad, will be
valid to the extent of such granted rights
the city authorized to grant.
A grant of special privileges on land dedi-
Gated to a particular public use is always
SuDJ6cI TO tue ImplieQ cCnutllOH tHdC IL may
be revoked whenever the needs Of the public
require; and the state or municipality has a
large discretion in determining when such a
condition has arisen; but such grant, right
fully made, is not revokable at the mere
arbitrary pleasure of the state or munic-
ipality. When such a grant has been acted
on the licensee has tcd rights in the license,
which are subject only to the paramount in
terests of the public.
Cause remanded to the court below to try
ard determine the issue whether the privi-
leges granted to the defendant by Ordinance
No. 2S6 constitute, either in whole or in part,
an unlawful misuse Of the property. and to
modify, IL necessary its order for judgment
accordingly. Mitchell, j.