Simmons v. Northern Pacific RailroadSimmons v. Northern Pacific Railroad
This is а proceeding by the plaintiff under the provisions of R. L. 1905, §§ 2106-2113, G. S. 1913, §§ 4506-4513, to obtain the use.of a portion of the defendant’s right of way in the village of Hawley,,Clay county, for the purpose of a public potato warehouse. There was judgment for the plaintiff and the defendant appeаls.
The defendant makes four claims:
(1) That the statute is limited to obtaining the use of a railroad right of way for a public grain elevator or warehouse.
(2) That the use of the right of way for a potato warehouse, as proposed by the plaintiff, is not a public use.
(3) That the grant of the right of way to the defendant by the United States was a conclusive determination that the land granted was necessary for purposes of a right of way, and that the defendant cannot be required to submit any portion of it to use for a public warehouse.
(4) That by Laws 1919, p. 642, e. 490,-exclusive authority is vested in the Railroad and Warehouse Commission to subject a railroad right of way to use for the purpose of a public warehouse.
1. The existing -statute had its origin in Laws 1893, p. Iff, c. 64, entitled “An act providing for the -erection of public grain warehouses and grain elevators, on or near the right of way of railways, and providing for condemnation proceedings in connection therewith.” Section 1 provided for the acquisition of the right to use the railwаy’s right of way ‘by “any person, firm or corporation desirous of erecting 'and operating at or contiguous to any railway station or siding a warehouse or elevator for the purchase, sale, shipment or storage of grain for the public for hire,” etc. The elevator оr warehouse was to be “within and between the outside -switches of the yard of such railway station or siding.” The statute continued in its original form until the revision
“Any person shall have the right to use, as a site for a public warehouse, a proper рortion of the right of way of any railroad, within the outside switches at any station or siding, upon the payment of reasonable compensation.”
The sections following give the procedure for acquiring the right.
The noticeable change is the dropping of the words “grain” and “elеvator” and the use of the word “warehouse” as descriptive of the character of the use which may be imposed upon the railroad right of way. The rule is that changes in a revision will not be considered as altering the law, unless it is clear that such was the intention. Manson v. Village оf Chisholm,
2. The use of a right of way for a potato warehouse is a public use. We do not understand the defendant to urge the contrary. Such a warehouse is a necessary facility in the transportation of potatoes under conditions obtaining now and for a long time past. It is as much so in character as a grain elevator, which was held a transportation facility constituting a public use of the right of way in a proceeding undеr the statute in Stewart v. Great Northern Ry. Co.
3. The Northern Pacific right of way came by grant from the United
"Of course, nothing that has been said in anywisе imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must hаve assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crоssings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.”
We do not give to this case the effect claimed for it. It does not •hold that the state in the interest of the public, either in the exercise of the power of eminent domain or of the police power, may not compel the railroad to submit its right of way to a public use or facility which it does not itself furnish. The statute is applicable.
4. Lastly, it is urged that chapter 490, p. 643, Laws 1919, entitled “An act relating to publiс warehouses on the right of way of railroads,” gives to the Eailroad and Warehouse Commission exclusive original jurisdiction of the question presented in this ease. That it gives jurisdiction is not questioned. It contains no repealing clause. We are brought to the conclusion that it does nоt supersede the general statute. Likely it would be better if it did. The whole matter of permitting the location of warehouses on rights of way is so lаrgely administrative and so little judicial that the commission, with all the information and resources which it has at hand, is in a better position than is the district сourt to settle the controversy speedily and rightly in the first instance. Bailway facilities and conveniences quite analogous to warehоuses are
Judgment affirmed.