38 Minn. 157 | Minn. | 1888
Upon the petition of the Minneapolis Railway Terminal Company, in proceedings under the statute for acquiring for its purposes certain lands of the Minneapolis Union Railway Company, commissioners were appointed by the court, and they proceeded to make their award of damages. The Union Railway Company having failed to appear before the court upon the hearing of the petition, although it had been served with notice, applied by petition, supported by affidavits tending to excuse its default, to have the order appointing commissioners set aside, and that it might be heard in opposition to the condemnation proceedings. Upon considering this latter motion the court deemed that the default of the Union Railway Company was excusable, but refused the application upon other grounds to be hereafter stated. That company then appealed from the order refusing this application, and also from the order appointing commissioners. We will first consider the former of these appeals.
It appears that the appellant had acquired the land in question, with other lands, as early as April, 1883, for its corporate purposes, and that it has since constructed a union passenger railway station upon a part of such lands, but not upon the land in question. Easterly of the present site of this depot the Minneapolis & St. Louis Railway Company formerly occupied a strip of land, upon which it had two railway tracks. In 1883 an exchange was made between these companies; this appellant taking possession of the land upon which those two tracks were laid, and giving possession to the
We are of the opinion that the court misconceived the case of the-appellant, as shown by the verified petition, and the separate affidavit of Mr. Hill. It may be taken as an admitted fact that the interest of the Minneapolis & St. Louis Company in the land occupied by its tracks was such as it acquired, by an executed .parol agreement, for an exchange, from the appellant. What is the extent of that interest, or rather what that is alleged to have been by the appellant-in its moving papers, is the question here. The verified petition of the appellant states “that it is the owner in fee-simple” of the land ' described, “and is entitled to the exclusive use and enjoyment of the-same, except that the Minneapolis & St. Louis Railway Company has the right to use the space thereon for two railway tracks across said lots,. * * * which right of use was given by said railway company in exchange for the use of certain other lands” referred to. In the separate affidavit accompanying the petition the affiant says that “all the arrangements and agreements for exchange of tracks between! said St. Louis Company and the said Union Railway Company were-made by this affiant in person, with the officers of said St. Louis-Company; that the right of way agreed on was the right of way for two tracks, and no more; and further, that it was distinctly understood and agreed that said two tracks should pass between said High street and the buildings of said Union Railway Company, and that, an approach should be made from said High street to said buildings-by a continuous bridge over said tracks; that at the time of said agreement the length of said buildings and bridge had not been determined, and there was no understanding or agreement, expressed or
Upon still another ground it would seem that, if the court deemed the default of the appellant excusable, so that it ought to have been allowed to maintain in the condemnation proceedings such rights as it properly asserted, the discretion of the court should have been exercised in its favor. As owner of the land proposed to be taken, the appellant would have had a right, at the proper stage of the proceedings, to have opposed the taking of this land, upon the ground or contention that the proposed appropriation was not necessary for the purposes of the petitioning company.
The court further held that, the commissioners having filed their report and award before the hearing of this application, it was not within the power of the court to grant the relief sought. We consider that the court had such authority, and that Gen. St. 1878, c. 66, § 125, is applicable in proceedings before the court of this nature. Wilcox v. St. Paul & N. P. Ry. Co., 35 Minn. 439-443, (29 N. W. Rep. 148.)
The respondent claimed that the denial of a former similar application constituted a final determination of the matter here involved, barring this renewed application. The court properly overruled this objection. The former denial was expressly made “without prejudice.” By the very terms of the order which is claimed to bar a renewed motion, a right to make the same was granted. The order must be given effect according to its terms and obvious purpose. Gunn v. Peakes, 36 Minn. 177, (30 N. W. Rep. 466.)
It is therefore considered (giving effect to the expressed conclusion of the court in the order appealed from as to the appellant’s default being excused) that the order refusing the motion should be reversed, and that, upon such terms as may be prescribed by the court below, by its proper order in that regard, (if it shall deem it proper to impose terms,) the motion should be granted so far as relates to the land here in controversy. This determination will be carried into effect by the further order of the court below, as here indicated.
The above conclusion renders it unnecessary, as it would seem, to consider the question presented by the appeal from the order appointing commissioners; but we are of the opinion that the grounds upon which the appellant claims that order to have been invalid are not sustainable, and the validity of that order is affirmed.