89 Minn. 284 | Minn. | 1903
The main track of the St. Paul & Duluth Railroad Company •occupied Railroad street, at the foot of Minnesota Point, in the city of Duluth, and certain private owners of property located on the westerly side of Lake avenue between Railroad street and the Government Canal entered into an agreement with the company for the purpose of granting the right of way and securing the ■ establishment of a railroad track running across their property to the canal, connecting with the main line at Railroad street. The .agreement is set forth in the deed,’ the material part of which is as fdllows:
“This agreement, made and entered into this 30th day of May, A. D. 1881, by and between [the several owners of the property], parties of the first part, and the St. Paul & Duluth Railroad Company, a corporation, * * * party of the second part, witnesseth.; That for and in consideration of the sum of one dollar ($1) paid to each of said parties of the first part, the receipt of which is hereby acknowledged, and the covenants and agreements herein contained, said parties of the first part do hereby grant and release unto said party of the second part the use of a strip of land*286 through the property hereinafter described as the same is respectively owned by them, said strip commencing at a point on the south side of Railroad street in Transfer Division of the city of Duluth, county of St. Louis and state of Minnesota, 100 feet, more or less, west from the intersection of the south line of said Railroad street with the west line of Lake avenue, and commencing also at a point 12 feet westerly on the south line of Railroad street from the point before mentioned, thence in the southerly direction 12 feet wide through [various lots owned by the parties of the first part] on Minnesota avenue in Upper Duluth, as designated and mapped upon a map filed for record in the office of the register of deeds for the county of St. Louis and state of Minnesota, and designated 'Map of Right of Way of Railway Track from Railroad Street to Canal,’ to which reference is hereby made for greater certainty, * * * to- be used for a right of way for a railroad track through said premises for the accommodation and use of the said party of the second part and the owners of said above-described property; and the said party of the second part-does agree to construct a track over the said right of way, and that it will at all times transfer or switch cars of all railroads terminating at Duluth to and from said track and any private side tracks connecting therewith, for a reasonable charge, not greater than the charge usually made by railroad companies for like services; and it is further agreed that the rights hereby granted shall cease and determine at any time when said strip of land shall' cease to be occupied by such railroad track, and in such event the rights herein granted shall revert to the owners respectively.”
The right of way so granted extended across forty-six lots, and' the entire distance from Railroad street to the Government Canal was a little more than half a mile. The road was built almost through the center of the various lots described, leaving one-half' of them on the east fronting upon Lake avenue, and the other half upon the west fronting upon the bay. The road was constructed shortly after the execution of the agreement, and, according to the evidence, was laid nearly upon the surface of the ground. There was, however, some grading required in the vicinity of Railroad street, and the elevation above the bay, for nearly the entire distance, was about two feet and four inches.
Respondent’s grantors became owners of the property in question in 1885 by deriving title through parties to the deed. This property is located about four hundred twenty-five feet south of appellant’s main track and three hundred fifty feet south of the-
At the trial below the court limited the recovery of damages to the interruption of the roadway across the track, and held that appellant was not liable for the manner in which the change in the elevation of the track affected the convenience of handling freight from the warehouses. Respondent having moved for a new trial upon the ground that the court had been mistaken in its application of the principle of law as to damages, and for errors in receiving and rejecting certain testimony, a new trial was ordered upon the ground that appellant was liable for the results attending the changed conditions respecting the elevation of the track, and from such order appeal is taken to this court by the railway company.
Considering the contract in all its bearings, we are satisfied that it is not susceptible of the interpretation put upon it by respondent. The grant is absolute of a strip of land through the property described to be used for the right of way for the railroad track. In consideration of this grant the railroad company agreed to construct a track over the right of way and to transfer or switch cars from it and its main railroad to and from any private tracks connecting therewith at no greater than the usual charges for such services. The effect of these provisions was to make this branch road a part of the main system, and, in connection therewith, to subject it to the regulations of the State Bailroad and Warehouse Commission. This branch is in no sense a private track, but is a complete and efficient part of appellant’s railway system. It may be used for the benefit of the public as well as the private property referred to, and the company may establish a station or freighthouses and condemn property for its uses in
The agreement is silent as to the grade at which the track should be constructed, and, although error was assigned in the court below for refusal to receive evidence to vary the agreement in that respect, the rulings ,of the court have not been urged by respondent upon this appeal. Nor does the record show that the grade was adopted in accordance with any agreement between the parties subsequent to the execution of the deed. It was established and the road built in 1881, and respondent did not construct his warehouses until 1885, and there is nothing to indicate that they were placed upon the grade in accordance with any special agreement or understanding.
We have., then, upon the one hand, in 1881, a railroad company which desired to build a branch line to the Government Canal, in connection with its main system; and, upon the other hand, certain private property owners, who desired to secure railroad facilities upon their property. They enter into a contract expressing mutual obligations, and the road is constructed accordingly. For
The constitutional amendment has no application to the facts in this case for the reason, as already stated, that the deed referred to provided that the railroad company should have the right to change its grade whenever public necessity required. It is true that where right of way has been acquired according to a fixed plan or grade, and assessment of damages has been made with reference to that particular condition, then under the amendment such grade cannot be changed without making the party liable for injury to the property. If it appeared in this case that the railway company had actually agreed that it should maintain its road at the grade originally established, then it would not be permitted to. change it without responding for the injury.
It does not follow from what has been said that the railway company would not be responsible for arbitrarily changing its grade without due reference to public necessity; but in this case the evidence is conclusive that the change was made not arbitrarily, but for the benefit of the road, and in response to a demand
There being no other question before the court upon this appeal, the verdict should be permitted to stand, and the order appealed from is reversed.