23 Minn. 153 | Minn. | 1876
By an act of the legislature, passed March 5, 1868, entitled “An act to authorize the city of Red Wing to issue bonds to aid in the construction of the St. Paul and Chicago railway through said city,” (Sp. Laws 1868, c. 14,) the city was authorized, by its council, subject to a vote of the people, at any time prior to the first day of August, 1870, to issue its bonds to the extent of $100,000 in aid of such enterprise, and to enter into any agreement with said company, in relation to the terms, time, and conditions of such issue, as might be agreed upon. On February 8, 1869, this act was amended by removing the restriction as to the time when such authority conferred upon the city should be exercised, empowering it to issue the bonds “ to aid in the construction of the St. Paul and Chicago railway,” with this proviso, “ that no such bonds shall be issued until so much of said railway as is or shall be located between the city of St. Paul and said city of Red Wing shall have been fully constructed, equipped, and put into successful operation for the transit of passengers
Under this authority a contract was duly entered into between the city and the defendant company, on or about May 8, 1869, by an agreement and ordinance duly passed and ratified, the stipulations, terms, and conditions of which are, so far as material to this case, as follows: “It is mutually understood by and between the parties hereto that no portion of said bonds shall be issued until said railroad shall have been fully constructed, equipped, and put into successful operation for the transit of freight and passengers from the city of St. Paul, in the state of Minnesota, to the city of Winona, in said state, or to some point south of Bod Wing connecting with some railway, so as to afford, in conjunction therewith and with other railways, direct railway transportation with Milwaukee and Chicago ; and said bonds, when so issued, shall each bear date subsequent to the completion, as above expressed, of said railway; and that no such bonds shall be issued unless said railway shall be fully constructed, equipped, and put into successful operation for the transit of freight and passengers from St. Paul to said Bed Wing, on or before the first day of January, A. D. 1871;” and the said company “covenants and agrees to construct, equip, and put into successful operation said railway, for the transit of freight and passengers from the city of St. Paul aforesaid to the city of Winona, in said state, or to some point south of Bed Wing connecting with some railroad, so as to afford, in conjunc
The ordinance, in terms, provides for the issuance of the bonds of the city, to an amount, etc., therein specified, “to aid the St. Paul and Chicago Railway Company in the constniction of its railway” between St. Paul and the point or points therein stated, and contains these provisions i “Provided, that no such bonds shall be issued until said railway shall have been fully constructed, equipped, and put into successful operation for the transit of freight and passengers from the city of St. Paul, in the state of Minnesota, to the city of Winona, in said state, or to some other point south of Red Wing connecting with some railroad, so as to afford, in conjunction therewith and with other railroads, direct railway transportation with Milwaukee and Chicago ; and said bonds, when so issued, shall bear date of a day subsequent to the completion, as above expressed, of said railway ; and provided, further, that no-such bonds shall be issued unless said railway shall bo fully constructed, equipped, and put into successful operation for the transit of freight and passengers from St. Paul to said Red Wing, on or before the first day of January, A. D.. 1871.”
The first question of controlling importance to be considered in this case is whether, in the construction of defendant’s railway, a bridge was required to be erected across the Mississippi river, by the terms of the contract between it and the city, as embodied in the written agreement and ordinance. No express mention is made of any bridge, either in the agreement or ordinance; and if its construction is required by the contract, it is because it ia
It is obvious that the aid which the city was authorized to give was to secure the construction of the identical road contemplated by the charter of the company, and which it was required to build in order to comply with its provisions ; and, inasmuch as no particular mode of effecting a crossing of the Mississippi river is indicated by the agreement or
The answer to this question, it seems to us, must bo in the negative. The court must take notice of the fact that this river is a navigable stream, subject to the commercial power of congress, which has been exerted over it in various ways ever since the foundation of the national government; that the right to free and unrestricted navigation, beyond any state interference or control, is forever secured to all the citizens of the United States, so that no company can derive any authority from any state to erect or place across or over it any bridge or structure, at any place or in any maimer, that shall materially obstruct its navigability and use as a commercial highway; and it makes no difference whether, at the place of crossing, both banks of the river be-wholly within the limits of the state, or not. State of Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 564-5.
When the original charter was granted, in 1857, it is an
By the act of March 2, 1865, the company could only acquire title to its quota of land for the first twenty continuous miles of completed road built under the act of March 6, 1863, upon the performance of the condition of constructing, and putting in complete running order, twenty consecutive miles thereof. Instead of commencing the construction at some point where twenty consecutive miles could be built and completed without the intervention of the river, it began at St. Paul, and built to a point on the river opposite Hastings — a less distance than twenty miles — and, as a continuation of the construction on the opposite side a sufficient distance to make up the deficiency might not be regarded a compliance with this condition, by reason of the use of the words “consecutive” and “continuous,” the legislature relieved it from this obligation, on March 4, 1868, and the company, under this legislation, received its grant of land without any controversy in regard to the erection of a bridge. Such was the condition of the legislation upon this subject at the time the city of Bed Wing was authorized to loan its credit in aid of the construction
These considerations and facts, taken in connection with the uncontroverted testimony of Mr. Rice — that, prior to the charter and the said agreement, no bridge had ever been constructed across the Mississippi, in the Northwest, by any railroad company, and that railroad connections had uniformlj' been established across said stream by other means— leave no reasonable doubt that the intention of the legislature upon the subject points to the conclusion that a railway, fully constructed in the usual and ordinary manner of other railroads under like circumstances, with the same or like efficient means of transit for its passengers and freight across said river — regard being had to the character, objects, and requirements of the enterprise — was all that was contemplated and required by the charter; and that it ivas in reference to the construction of such a railroad that the agreement and ordinance in question were made, seems ■equally free from doubt. The act enabling the city to enter into the agreement was to aid the St. Paul & Chicago railway — in other words, the identical road contemplated by the charter of the company. The ordinance states its purpose to be to aid the company in the construction of its railway, etc Nothing is said in any of the stipulations indi■cating, either in terms or by any fair implication, that the road which the company was undertaking to build by the agreement was any other or different than the one which it had undertaken to construct under its charter, and was required to complete to render its swamp-land grant available. The stipulation that no bonds should issue “until .said railway should have been fully constructed, equipped, and put into successful operation for the transit of freight and passengers from St. Paul to Winona, connecting with some railroad, so as to afford, in conjunction therewith and with other railroads, direct railway transportation with Milwaukee and Chicago,” indicates an eastern outlet by
It may bo urged that the contract and ordinance contemplated the construction of a bridge because, as is found by the court, it was the purpose of the company to build one at this point, at all times from and after 1863. It is a sufficient answer to this that it does not appear from the findings of fact, or otherwise, that, at the time of entering into this contract with the city, or at any time prior thereto, the company had ever contemplated the erection of a bridge across the Mississippi, except as an ultimate possibility dependent upon circumstances not likely to occur for several years after the construction of the road to Winona. The uncontradicted testimony of Mr. Rice is that “the imme
In view of these considerations we are of the opinion that the construction of a bridge was not absolutely required of the company by its agreement with the city. Any other mode of effecting a transfer of its passengers and freight .across the river, such as was then usual and customary under like or similar circumstances, and as was adequate and reasonably convenient as such to accomplish the transit, would be a substantial compliance with the requirements oí the agreement and ordinance in this respect. If the place •of a bridge was supplied in this way in the present instance, and the points selected on either side of the river for making the transfer were suitable and reasonably proper — having reference to the mode of transfer, the nature of the stream, ’its adjacent banks, the convenience of the public, and all the •attendant circumstances — and no portion of the line of road was left incomplete except as between these points of transfer, then, in our judgment, the road was fully constructed within the meaning of the ordinance and agreement. Whether the requisite facilities for crossing the river, as herein indicated, were provided by the company
It would seem from the whole evidence and findings of fact that the case was disposed of by the court below mainly, if not wholly, upon the erroneous theory that the construction of a bridge across the Mississippi, at the point of crossing at Hastings, within the time fixed by the ordinance, was an indispensable condition precedent to the right of the company to receive the bonds in question ; for the findings are silent upon the question whether the mode of transfer provided was a usual and customary one in crossing the Mississippi river, and, as such, efficient, adequate, and reasonably convenient to effect the transit of both passengers and freight; and, also, upon the question whether the selected points for making the transfer were suitable and proper under the circumstances, though it is expressly found “ that to a continuous railroad, upon the route aforesaid, from St. Paul to Ned Wing, a bridge across the Mississippi was and is indispensable” — a fact irrelevant to the real merits of the controversy, inasmuch as, in our judgment, a railroad with an unbroken track across such river was neither intended nor required by the ordinance and agreement. Because of the manifest adoption of this erroneous theory by the court below, in its consideration of the case, a new trial must be granted. What conclusion the district court would have reached in regard to the performance of the conditions of the agreement and ordinance as herein construed, but for this error, it is impossible to determine ; and, as either party may, upon the view of the case herein presented, desire to introduce other or additional testimony, it is unnecessary to consider the effect of the evidence now before us in this regard, or its sufficiency or insufficiency upon this question.
Order reversed, and new trial granted.