The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-02-09
LEASE OF
THE LEVEE
City's Rights i'm the Question.

Nights III InS QucSllOH.
S9'~o~o-~-~~-~~-~-~~~-~
To the Editor of the Globe.
outside OF the interest | feel as counsel of
me city OF St Paul, in the levee case and
Ine proposition of the Chicago Milwaukee &
S p. raul hallway company, a defendant, to
tease the levee for seventy-five years for
the trlnlng consideration hereinafter men
sIoneu, ! snare in common with other citi-
els th OF 81: Paul the anxiety that the valuable
rlghts OF the city shall not be sacrificed
, In all the articles that have appeared upon
lne SUBJECT In the newspapers, none of them
oeny that the value of the premises to this
company amount to at least half a million
OF dollars, il not more, according to its own
estimate.
One of the articles stated that the premises
cannot be sold or leased, but can only be used
lot levee purposes. The proposition Of the
Milwaukee company however, proposes that
they shall be sold or leased to that company
and that for a greatly inadequate considera-
ton.
These premises are held by the city as a
sacred trust for the benefit not only of the
CITY, but the public at large-a point that
has impressed itself upon the supreme court
in its consideration Of the case and to such
an extent that that court holds that If there
We're an actual sale lease by the city of
the premises even for adequate consd-
GRAFTON, and such sale or lease was in sub
stantial conflict with the terms of the ded-
and landing. they would be void and that
neither the city authorities nor the legislature
itself would have the power to make a sub
stantial diversion Of the trust or dedication.
This is now the only question to be tried
under the last decision of the supreme court,
affecting that part of the premises alone upon
which the brick warehouse is erected; that is,
the bank of the river between Sibley and
Wacouta streets. All the other portion of
the premises embracing the entire levee from
! Broadway street to the east side of Wa
couba street, and the remaining part Of the
levee not included in the bank proper of
the Mississippi river between the east side
Of Wacouta and Sibley street, having been
decided by the supreme court in favor of
the city with the exception of the right of
the railroad to operate its main freight track
and siding
If the city Of st. Paul has no right or
power to sell or lease the premises, as pro-
posed by the railroad company, that of
course ends the whole question. If the city,
however, has the right, as is claimed by the
lease, then I claim that the consideration
offered is grossly Inadequate and against the
interests of the city and public.
The proposition embraces two items:
First-A bridge over the Short line of the
railroad company at It's Summit avenue cross
ing. The railroad does not deny it's liability
to build an adequate bridge for that purpose,
but is higgling with the city authorities at
the extra expense "a few thousand dollars),
which would be required to make the bridge
suitable in material and style for the loca
ton.
Second--A waiver of the rights of the rail-
! read company, if any, SO far as they may in
terfere with the construction of the ap-
breaches Of the Broadway bridge, a question
which the railroad company does not eX-
clusively control. The contention SO far in
this Broadway bridge litigation has been with
the Great Northern Railway company, in
which the city maintained its right of way
to the river to a width of sixty feet, and
probably on the same evidence would sue
coed TO the same extent against the Milwau-
kee company.
The district court, in deciding the question
in favor of the city, however, granted an in
junction TO the Great Northern Railway COM
pany on the ground that these proceedings
recessitated a change of grade which should
first be obtained under proper proceedings
with an award Of damages to the property in
jured thereby, especially the general o.
fees of the Great Northern. Last month the
Great Northern paid the costs and demanded
second trial under the statute, which means
litigation over again of the case and which
will probably require over a year to termi-
nate it.
With respect to the only point undecided
in the leyee case before mentioned, which
is to be retired by order Of court, the su-
preme court in it's decision Of Jan. Z, 1896 (65
N. w. R., 649), says: We have not over
looked the difference between a ''street" and
e ''levee." street is designed exclusively
for the purposes of travel and intercommuni-
cation. The word "levee," as used in the
West and South, means landing place for
vessels and for the delivery Of merchandise
to and from such vessels, and as incident
to that, for the temporary storage OF the
merchandise. Hence, some things might be
a proper use Of a public levee, which would
constitute a msuser Of a street For eX-
ample, the erection and maintenance of q
warehouse place for the receipt and de-
livery and temporary storage of goods while
in transit would probably be proper use OF
a levee, provided it was open to the com
mon use Of all the same terms. This
would be in aid OF and necessary to the
main object for which a leVee is designed.
But this is a very different thing from CIV
ing to a particular person or corporation the
right to occupy Q levee as site for It's
warehouse solely for its own business and
to the exclusion of the general public, as
was attempted by tire ordinance in question.
The fact that tie common council stipulated
that small Part Of the structure might be
used by the public for wharfage and transfer
purposes does not alter the case.
The court in its last decision, remanding
the case, considering that there might be
questions Of fact affecting the rule laid GOWN
by it on Jan. T. 1896, says (6S n. w. r. 400:
''To give a public levee, or any part Of 1t,
to a railroad company to be used as site
for its depot, for its general freight
warehouse without reference to its traffic
by way CT the transfer CT passengers and
freight to and from vessels navigating the ad
iacent river or other navigab.e water would,
in our opinion constitute a diversion Of the
property to a use foreign to and inconsistent
with that for which a Ievee is dedicated
The court suggests in conclusion that this
matter might be adjusted con legal lines sug
gested in this opinion on a LIBERAL basis
that will at once protect the rights of the
public and the defendant company"
This suggestion of the Honorable Judge
Mitchell, who delivered the opinion, was
made of course, not being of binding force
On either party, and certainly was not in
tended to mean that the city should dis
miss the suit, and substantially give away
all the rights that it had established by the
decision of the supreme court without any
protection of the rights Of the public; thus,
allowing the railroad company that has been
using this valuable public property exclusive
ly for a period of fifteen years, without pay
ing for it, for its use. closed to all other
of the numerous railroads that come into
the city Of ST. Paul, well as to the gen
eral public and to continue to use it
for seventy-five years longer.
The basement or second story Of the brick
warehouse. referred to in article of the
Pioneer Press Of the It'll inst. as omen to
the public, cannot be used for the landing of
passengers, and with respect to freight, is
unfit for any purpose except coal or some
rough material. It's egress is such as also
to deter its use for ordinary purposes. Any
one can verify this statement by examining
the premises. The platform. according II the
views and claims Of the defendant in the
case, far out of reach for landing for
any of the large boats at least.
l believe that in the trial Of this question
that the city will succeed and a decision
in its favor upon this point will determine
that neither the city authorities or even the
legislature have power to authorize a lease
or sale of the premises, as proposed by the
Milwaukee company.