117 Minn. 14 | Minn. | 1912
This is an appeal from an order of the district court for Koochiching county denying plaintiff’s motion for an injunction pendente lite restraining defendant from building its tracks across any of the streets in the city of International Falls, and especially across Fourth street in said city. The facts, as they appear from the complaint and the affidavits considered on the hearing in the court below, are as follows:
Plaintiff is a municipal corporation under the laws of this state, and as such has the sole and exclusive control of all streets, highways, and alleys within the city. Fourth street is one of the duly indicated and laid-out highways and streets of the city, and furnishes the only outlet for travel between said city and the village of Bainier to the east thereof.
Defendant is a railroad corporation under the laws of this state, authorized to build, maintain, and operate as a common carrier, a line of railroad from a point of junction with the line of the Duluth, Bainy Lake & Winnipeg Bailway in the county of Koochiching westerly to the city of International Falls, and to the international boundary in Bainy Biver; also a line of railroad from the city of International Falls southerly and westerly across the state to the west line thereof.
During the years 1909 and 1910 defendant constructed and has since operated its road into and through the city of International
The question before us is whether defendant was obliged to obtain the consent of the city before constructing its tracks across the •city streets.
1. The legislature had the power to grant authority to the railroad company to cross public highways and streets, and authority to construct a railroad between designated points implies authority to cross highways and streets which the road may intersect. A franchise from the city or village, or its consent, is not a prerequisite to the crossing of streets or highways in such city' or village, unless the legislature has so provided. The legislature has the power, however, to provide that such a franchise or consent must be obtained, and in such case the railroad company is obliged to procure such a franchise from the city or village, or its consent, as a prerequisite to constructing its tracks across streets or highways within the limits of such city, or village.
These propositions are well settled by the authorities, among which we refer to the following: 33 Cyc. 194; 2 Lewis, Eminent Domain, § 430 (3d Ed.); Canton v. Canton, 84 Miss. 268, 36 South. 266, 65 L. R. A. 561, 105 Am. St. 428; Thompson v. Ocean City, 60 N. J. L. 74, 36 Atl. 1087; Raritan v. Port Reading, 49 N. J. Eq. 11, 23 Atl. 127; Northern v. Wilkes Barre, 218 Pa. St. 269, 67 Atl. 352; Morgan v. Des Moines, 113 Iowa, 561, 85 N. W. 902; Elliott, Railroads, § 1099; Chicago v. City, 220 Ill. 310, 77 N. E. 204; People v. North Tonawanda, 70 Misc. 91, 126 N. Y. Supp. 186. There is a well-recognized distinction between the right to cross a street and the right to occupy it longitudinally, and in stating the
2. The inquiry then is: Has the legislature provided that the consent of a city or village is necessary before its streets may be crossed by railroad tracks ?
Section 2841, E. L. 1905, provides that no railway corporation “shall construct, maintain or operate a railway of any kind * * * in or upon any street, alley or public ground of a city or village, without first obtaining from, and compensating said city or village for a franchise conferring such right.” It was decided in Minneapolis & St. Paul Suburban Ry. Co. v. Manitou Forest Syndicate, 101 Minn. 132, 112 N. W. 13, that to cross a street is not to construct a railroad in or upon such street, that the words “in or upon” refer to a longitudinal occupation, and that it was not necessary under this section to obtain from a city or village a franchise conferring the right to cross a street. This court said: “To hold that a franchise must be obtained as a prerequisite to crossing a highway, road, or street would put it in the power of the town, village, or city authorities throughout the state to practically block railroad extension. Such is not our view of the statute.” We adhere to the decision in that case, and further consideration of section 2841, in this connection is unnecessary.
3. This brings us to the question whether E. L. § 2916, was intended to make the consent of a city or village a prerequisite to a railroad crossing its streets. This section is as follows:
“When in the location of any railroad, it becomes necessary to occupy any road, street, alley, or other public way, the municipal corporation or other public authority owning or having charge thereof and the railroad company may agree upon the manner, terms, ana conditions in and upon whidh the same may be used or occupied, or such corporation may appropriate so much of the same as shaE be necessary by condemnation proceedings under the right of eminent domain.”
It is quite apparent that this section does not require a franchise from or the consent of a municipal corporation. It says that the
The right of the city is confined to a right to insist that defendant proceed by condemnation proceedings to appropriate so much of the street as shall be necessary for its purposes.
Whether the city has even this right is a doubtful question. If to cross a street is not to “occupy it,” and the section was intended only to cover cases where in the location of a railroad it becomes necessary to run along a street, then clearly condemnation proceedings are not required by this statute, in so far as concerns the interest of the municipality in its streets. But in the Manitou Forest Syndicate case it was said that, when it is the purpose of a railway company to merely cross a street, the right of way may he condemned under section 2916.
In Duluth Terminal Ry. Co. v. City of Duluth, 113 Minn. 459, 130 N. W. 18, it was held that the provision in B. L. 1905, § 2841, hereinbefore considered, enacted as chapter 14, p. 189, Laws 1893, took away the right given by B. L. 1905, § 2916, to a railway company to acquire by condemnation proceedings the public easement to construct, maintain, or operate a railway along a street in such city or village, and that a franchise from the city or village was a prerequisite. The decision was expressly limited to the construction of a railway along a street, and it was not decided whether section 2916 was still in force as to acquiring the right to cross a street in a city or village by condemnation proceedings. As it was decided in the Manitou Forest Syndicate case that it was not necessary to procure a franchise from the city or village, it would seem to follow that the provisions of section 2916 in regard to condemnation pro
4. This brings us to the question whether, at the suit of a city, equity will enjoin a railroad company from constructing its tracks across a street in such city, when such company has power to and must acquire the right to so construct its tracks by condemnation proceedings.
Is there not an adequate remedy at law? Is there any relief or advantage that would accrue to the city from an injunction that it could not obtain by an action to enforce its right after the acts sought to be enjoined are done ? The city’s rights in condemnation proceedings would be very limited. It could, perhaps, litigate the question of the necessity of the taking; but that it would be unsuccessful in any such defense is too clear to justify saying that this presents any substantial ground for an injunction. Defendant has done the grading for the four additional tracks, and had actually laid the ties and rails to the line of Fourth street on both sides thereof. The new and growing industries of the city require the tracks. It is inconceivable that a court would hold that they were not necessary, or that they could be constructed and used without crossing the street. Nor would condemnation proceedings give the city or the public any advantages in the way of an opportunity to insist that the crossings be made safe. The city has an absolute right to compel defendant to provide guards, gates, planking, bridges, and, in short, to do everything that goes to make a crossing safe for public use.
5. Any rights that the city has are clearly rights that would not be lost or affected by the actual appropriation of the easement before condemnation.
The city has no proprietary rights in its streets. Whatever rights
All that the city is entitled to is that the tracks shall be so constructed and maintained as to make the crossing safe, and this right is amply secured by the common law as well as the statutes. It is impossible to hold that plaintiff has not an adequate remedy at law, and we conclude that the court below correctly denied a temporary injunction.
Order affirmed.