26 Minn. 66 | Minn. | 1879
Lead Opinion
It appears that, prior to instituting any proceedings to ascertain and pay the compensation to be paid for taking the land in controversy, the defendant, the railroad company, constructed and was operating its road across such land. It instituted such proceedings in 1870, and in those proceedings the question arises, is the owner entitled to have the amount which the company must pay for the right of way estimated upon the basis of the value of the land, including the road-bed,^ties, rails, etc., -laid on it by the company, or of the value of the land without those improvements ?
The question is new in this court. The cases in this court, referred to by the plaintiff, have very little bearing upon it. Gray v. First Div., etc., R. Co., 13 Minn. 315, and Harsh v. First Div., etc., R. Co., 17 Minn. 439, and Warren v. First Div., etc., R. Co., 21 Minn. 424, hold that until compensation is made to the owner, a railroad company has no right to take
In this case, the company, having entered upon the land without making compensation, and, so far as the case shows, without the consent of the owner, was (technically, at least,) a trespasser; and I have no doubt that where a trespasser affixes anything to the soil, it becomes, in strict law, a part of the soil, and belongs to the owner of it; and if the value of the land taken, at the time when taken, is to be the sole measure of compensation for the taking, this would be conclusive of the plaintiffs’ right to have the value of these ties, rails, etc., included. But while the value of the land taken is a very important, and in many cases the controlling, element, it is not, as has been frequently held by this court, the sole consideration in arriving at the amount of compensation. Thus, in Winona & St. Peter R. Co. v. Denman, 10 Minn. 208, (267,) it was held that where the land taken was part of a larger parcel used as a farm, the commissioners were not confined to the damage done to, or the value of, the land actually taken, but might inquire into the effect of the taking upon the whole tract; and also that the expense to the owner of fencing, rendered necessary by the construction of the
That, in an action of ejectment, she might recover the track with the land, does not dispose of the question, for in such action the parties would rest on the technical rule as to what constitutes the realty, and she would recover the whole or
It was conceded on the argument that the company took possession of the land some years before proceedings to obtain the right of way were commenced, and constructed its road over it, and has been operating the road ever since. When the proceedings ware commenced does not appear; but it is not questioned on the argument that in taking possession of, and constructing its road over the land, it intended to make this a part of its general line, and ultimately to secure, in the manner prescribed by law, the right to retain the land for that purpose; and the company was operating under a charter which in terms authorized it to enter upon, and construct and operate its road over, the land in advance of making the compensation required by the constitution. Although, notwithstanding this, the company was, under the decisions of this court upon the constitutionality of this part of the charter, a trespasser in constructing itswoad over the land without first making just compensation, we think these facts ought to-be considered when the question between the company and the owner is, what is just compensation to be made by the former to the latter for the taking ?
When we are not bound down by tbe technical rules of property, but may enter into the consideration of what, under •tbe circumstances, is just and equitable between the parties, we can see no reason for allowing the plaintiff the value of the road-bed, ties and rails which the defendant has placed upon the land. The court below was right in excluding such value, and the order denying a new trial is affirmed. •
Concurrence Opinion
concurring. I agree to the general conclusion arrived at by the majority of the court in this ease, viz., that the nlaintiff is not entitled to recover for the road-bed, ties