30 Minn. 541 | Minn. | 1883
The action is in ejectment. The question raised here is on the denial by the court below of a motion by defendant for leave to serve an amended answer. Perhaps the court, in the proper exercise of its discretion, might have denied the motion on the ground of defendant’s neglect to make it in time; but it did not deny it for that reason, but on the ground that the amended answer proposed did not set forth facts constituting a defence. As the decision was based on that ground, it is reviewable here.
The proposed amended answer set forth in substance that the Minneapolis & Northwestern Railway Company, a railroad corporation organized under the general laws of the state, for the purpose of constructing a railroad from the city of Minneapolis to the south shore of Lake Minnetonka, in 1879 ascertained, in the manner provided by law, and paid to plaintiff, the compensation for taking, and took, for a portion of its right of way for said railroad, the premises in question; and afterwards, in January, 1881, conveyed said right of way to defendant, which was authorized by Sp. Laws 1879, c. 185, to construct a railroad between the same points, and to purchase its right of way; and that defendant thereupon entered upon and constructed its railroad across the premises in question, and continues to operate its road across the same. On this answer three questions appear to be raised here: First, had the Northwestern Company authority to convey; and, if not, what was the effect of its conveyance to the St. Louis Company? Second, had the latter company capacity to receive and hold the right of way ? Third, did the transaction between the two companies amount to an abandonment of the public use, so that the rights in the land acquired by the Northwestern Company became extinct ?
Taking up the second question first, — the power of the St. Louis Company, under the third section of Sp. Laws 1879, c. 185, — the act authorizing it to construct and operate a branch line of railroad from Minneapolis to the south shore of Lake Minnetonka, gives that
It is not so clear that power to convey the right of way existed in the Northwestern Company. An argument in favor of the power to assign the right may be made from the language of Gen. St. 1878, c. 34, § 26, — the law under which its right of way was acquired. That section provides what judgment shall be entered on the verdict or assessment ascertaining the damages to be paid' to owners of lands taken, and that it shall declare that, upon payment of the verdict or assessment, the right “to take, use, and appropriate any property in controversy on said appeal, for the purposes aforesaid, shall, as against the parties interested in said verdict or assessment, be and remain in said corporation, their successors and assigns, forever.” But the case does, not turn on the construction of that statute; for whether the Northwestern Company could convey,'or the St. Louis Company could receive the property, does not concern this plaintiff, unless it amounts to an abandonment. She had no interest in the right of way. So long as it continued to exist, it was immaterial to her in-' terests whether it belonged to the 'former or the latter corporation, and whether the latter or the former applied it to the use for which it was taken.
In respect to conveyances to or by a corporation, no one whose interests are not affected, except the state, can. call in question the capacity of thé corporation either to convey or receive and hold property. As to persons whose interests are not so affected, if the state acquiesces in the exercise by the corporation of power to purchase and convey, beyond what the state has conferred on it, they have no right to complain. Morawetz on Corporations, § 117; Natoma Water & Mining Co. v. Clarkin, 14 Cal. 543; Union Water Co. v. Murphy's Flat Filming Co., 22 Cal. 621; Chicago, B. &. Q. R. Co. v. Lewis, 53 Iowa, 101; Chambers v. City of St. Louis, 29 Mo. 543; Martindale v.
Was the conveyance an abandonment of the use for which the land was taken, so that it reverted to the owner free of such use? In theory the land was taken, and the right to apply it to the public use proposed acquired, for the state. It is true, the title to the right thus acquired vested in the corporation, but it so vested in it only for the purpose of employing it in the public use. So far as taking and holding lands under the sovereign right of eminent domain is concerned, railroad corporations must be deemed agencies through which the state exercises that right, to subserve the public needs. When taken for railroads, the land is taken under authority of the state, to be applied under the same authority to a public use, to wit, to a highway, public in a certain sense. Upon no other theory can the taking and holding of real estate of private persons, without their consent, "be justified. It is the purpose for which the land is taken, and not the particular corporation which the state authorizes to take it, that ^determines whether the use is public or not.
In this case the state authorized the taking, for the purpose of a railroad from the city of Minneapolis to the south shore of Lake Minnetonka. The use would have been the same had it authorized any other company than the Northwestern to take it for that purpose. Who holds and uses the land for the purpose for which it is taken, does not affect the character of the use. So long as the land continues to be applied - to the purpose for which it was taken, — to wit, as a right of way for a railroad between the two points indicated,— the use remains the same, whether it be so. applied by the corpora
That the state did not expressly authorize the sale, does not, so long as it acquiesces, and so long as no one having the right to do so questions the sale, in any way affect the question of abandonment.
Order reversed.