The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-10-18
ON ITS MIDWAY PROPERTY.
TO JUDGE BRILL.

Judge Brill handed down an i'm
portant decision yesterday involving
the legal question whether a tract of
land belonging to the Minnesota Trans
fer Railway company and situated in
the Midway district, is liable for taxes
under the rule eXempting land actually
in use by railroad companies from tax
alton on the payment by the road of a
certain per cent of its gross earnings.
The decision means the payment to
Ramsey county of about $4,000 in
taxes from 1888 to 1894 inclusive, the
court finding that the tract Of land
was properly assessed.
The facts in the case were stipulated
by the county attorney and Attorney
Norrish on behalf of the Minnesota
Transfer Railway company Judge
Brills accompanying memorandum
setting forth the facts and his opinion
is as follows:
The owner of the property in ques-
ton is a railway corporation organized
under the laws of this state, and has
properly paid to the state the per-
centage upon it's gross earnings pro-
Vided for by the statute in lieu of
taxes upon its property. It owns a
considerable tract of land in this coun-
~, all of which, except a small amount
was acquired in 1884, and all of which,
under the stipulation of facts, was ac-
Qufred as and for part and parcel of
Its yards and grounds as an entirety
The $3.50 acres sought to be taxed
are part of two government quarter
sections in section 49, town, 30, range
rs. The two forty acres of which the
tract is part, are traverSed by tracks
of the railway company, and they lie
In the southeast corner of the COM
panyS holding, and are bounded on
the north by University avenue, on the
east by Prior avenue, on the south for
a portion of the distance by this tracks
of the Chicago, Milwaukee & ST. Paul
railway and for the remaining dis
lance on the south, and on the west
by a line drawn so feet from the line
of the railway company's southerly
and easterly tracks. This tract is not
enclosed by any fence. and there has
been no physical segregation of the
tract by 7mpany from the remain
der of the ID held by it. The taxing
officers have omitted from the tract
sought to be taxed so feet along the
easterly side of the tracks of the COM
pany, thus allowing for the usual right
of way of railroads. The taxes sought
to be recovered amount to something
over $4,000, and there is no dispute
over the amount. or as to the regular
ity of the proceedings, If the land is
taxable at all
as declared in the case Of Ramsey
county against Railway Company, SO
Mimi, 542, is, that the property Of
railway company which may be held
and used, or may fairly be said to be
held for use presently, for railroad pur-
poses is exempt from direct taxation,
and that property not used and not
held for use presently, though held IN
good faith with the purpose at some
future time to devoting it to use, is
not exempt. Property to be exempt
must either be in actual use or in pro-
cess of being appropriated to actual
use.
The land here sought to be taxed has
never been in actual use for railroad
purposes, and it is not in process of ap-
preparation to actual use, unless the
fact that the tracks of the railway COM
nany were built across the government
subdivision of which the land taxed is
q part constitutes an appropriation OF
the entire government subdivision. 1t
may be in particular case that the
use of part of government subdivls-
ION or part of town lot may be OF
such nature and so far extended that
&c would constitute an appropriation OF
the whole. But 1t could not be held
that the running of a track across the
corner of a quarter SETON would be an
appropriation of the entire one hundred
and sixty Q60) acres. In determining
whether the whole subdivision or tract
is appropriated to present use by the
use of a part, it is proper to consider
the nature and situation of the prop
erty, the extent of the property not
rsed. its form and it's relation to the
property In use. The land in question
here is a considerable tract; it is in the
interurban district and apparently
within the city limits. 1t lies in a COM
nact body and is bounded on two sides
by city streets; 1t is not surrounded by
4 -
easily severable from 1t. 1t has not
been in actual use and it has evidently
not been the purpose during the years
for which taxes are claimed, to use 1t
: presently. think it must be held that
this land has not been appropriated to