St. Paul & Duluth Railroad v. City of Duluth

Railway across Public Street — Branch. Line — Sp. Laws 1861, c. 1. The right granted to the Lake Superior & Mississippi Railroad Company (now St. Paul & Duluth Railroad Company) by Sp. Laws 1861, c. 1, to construct its railroad across any public road or highway, does not extend to branch roads which are neither a part of, nor appurtenant to, its main line to the west end of Lake Superior. Same — Unimproved Platted Street — Adverse Possession. The mere construction, maintenance and occasional use by a railroad company (which has no conveyance of the land) of an ordinary railroad track across a platted street while it still remains unimproved and unfit for public use, and before public convenience or necessity requires it to be opened and improved for use as a street, does not constitute adverse possession, as against the public. Such occupancy must be presumed to be subject to the paramount right of the public.

Action in the district court for St. Louis county to enjoin the city of Duluth and the Duluth Street Railway Company from interfering with certain railroad tracks of plaintiff in the city of Duluth. The cause came on for trial before Moer, J., without a jury; and at the conclusion of plaintiff’s testimony, the court, on motion of defendants, dismissed the action. From an order denying plaintiff’s motion for a new trial, it appealed. Appellant is the successor of the Lake Superior & Mississippi Railroad Company, and the possessor of all the rights, privileges and immunities of that company. The charter of that railroad company (Sp. Laws 1861, c. 1) authorized it to construct a railroad from the west end of Lake Superior to the Mississippi river, and to construct the railroad across any public or private road, highway, stream or watercourse, if the same be necessary. It is conceded that to authorize the occupation of a public street by a railroad company legislative authority must exist. This authority need not be expressly conferred, but may be given by necessary implication. For instance, a general grant to construct a railroad between certain termini, without prescribing the exact course or line, is sufficient to authorize the crossing of public highways, because this is necessary in order to execute the grant. Inhabitants v. Connecticut, 4 Cush. 63; 2 Dillon, Mun. C'orp. § 707 (4th Ed); Lewis, Em. Dom. § 270; Com. v. Erie, 27 Pa. St. 339; State v. Montclair, 35 N. J. L. 328; Allen v. Mayor, 53 N. J. L. 522; Cleveland v. Speer, 56 Pa. St. 325; Black v. Philadelphia, 58 Pa. St. 249; Philadelphia v. Williams, 54 Pa. St. 103. As to the construction of similar powers, see Cray v. First Division, 13 Minn. 289 (315); State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131; State v. St. Paul, M. & M. Ry. Co., 62 Minn. 450; Village of Wayzata v. Creat Northern Ry. Co., 50 Minn. 438; Village of Wayzata v. Creat Northern Ry. Co., 67 Minn. 385; Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 461, 471; Chicago, B. & N. R. Co. v. Porter, 43 Minn. 527. Appellant concedes that the street railway is entitled to a crossing, but it insists that it shall be made in such a manner as not to interfere with the use of appellant’s tracks. Under 'our contention it is immaterial, as respects this proceeding, as to when or how the street was acquired, for the evidence of adverse user or enjoyment is sufficient to give appellant the right by prescription to cross the street with its tracks, and use the same for the purposes of railroad operation. As to the acquisition of easements by prescription, see Mueller v. Fruen, 36 Minn. 273; Prentice v. Geiger, 74 N. Y. 341; Swan v. Munch, 65 Minn. 500; Cornwell v. Swift, 89 Mich. 503; Hesperia v. Rogers, 83 Cal. 10; Bodfish v. Bodfish, 105 Mass. 317; Barnes v. Haynes, 13 Gray, 188. The rule is now well settled in this state that the public lose the right to occupy streets on the same principles as those upon which private right to land is lost. The case is not different therefore from acts of occupation as respects private property. City of St. Paul v. Chicago, M. & St. P. Ry. Co., 45 Minn. 387; Village of Glencoe v. Wadsworth, 48 Minn. 402; St. Paul & D. R. Co. v. Village of Hinckley, 53 Minn. 398. The respondents contend: (1) That appellant derives all its rights from the acts of the legislature; (2) that those acts are to be strictly construed; (3) that the sole authority to cross streets, expressed or implied in those acts, at the most refers only to such crossing of the streets as is necessary for the construction of the main line of appellant from the Mississippi river to Lake Superior; (4) that the Rice’s Point line in general, and the “Gray’s Mill Track” in particular (the track which gave rise to the pending litigation), are not part of the main line of the Lake Superior & Mississippi Railroad; (5) that consequently no right passes under the legislation in this state to cross any street on the Rice’s Point line, or on the Gray’s Mill track, with its line of rail. As to the rule of strict construction of grants of franchise to corporations, see Proprietors of Charles River v. Proprietors of Warren Bridge, 11 Pet. 420, 545; 23 Am. & Eng. Enc. 397; 4 Thompson, Corp. c. 114. The statutes incorporating appellant and its predecessors authorized the construction of the railroad only to the west end of Lake Superior. Laws 1857 (Ex. Sess.) c. 93, §§ 2, 7; Sp. Laws 1861, c. 1. Sp. Laws 1870, c. 63, which legalizes the construction of tracks on Bice’s Point, refers only to the tracks then in existence, and therefore does not apply to the Gray’s Mill track, which was not built until 1872. By the simple act of placing ties in Arthur avenue, and laying rails on those ties, and leaving the ties and rails there for 15 years, appellant could not obtain either an easement or a fee in the land. There must undoubtedly be, in addition, a use of the road so created to constitute prescription or adverse possession. Texas v. Wilson, 83 Tex. 153; Emery v. Baleigh, 102 N. O. 209. The right obtained in this case can only be a prescriptive right to an easement for a right of way. It would not be a title to the soil. Entry upon a street, and use of the same as and for a right of way, would not be. an entry under a claim of title in fee. It could, therefore, never ripen into a title in fee. Indianapolis v. Boss, 47 Ind. 25; Village of Wayzata v. Great Northern By. Co., 50 Minn. 438; 1 Am. & Eng.. Enc. (2d Ed.) 887. Appellant’s possession was not hostile. It is the law that until the time arrives when any street or part of a street is required for actual public use, and when the public authorities may be properly called upon to open it for the public, no mere nonuser of any length of time will operate as an abandonment of it; and all persons in possession of it will be presumed to hold subject to the paramount right of the public. Beilly v. City, 51 Wis. 526; Lane v. Kennedy, 13 Oh. St. 42; Com. v. City, 16 Pick. 442; Henshaw v. Hunting, 1 Gray, 203. It further appears that the possession of plaintiff in this case is held under deeds and licenses which distinctly recognize the plat and existence of the street. In numerous decisions it is held that the fact- of possession is not regarded to be hostile when it is taken under deeds which characterize the possession and recognize the existence of the street, to a part of which title is claimed by reason of adverse possession. Texas v. Wilson, supra; Smyles v. Hastings, 22 N. Y. 217; Bridges v. Wyckoff, 67 N. Y. 130; Village v. Steyner, 135 N. Y. 341; Mayor v. Law, 53 Hun, 637; In re Commissioners, 53 Hun, 556; Hurley v. Mississippi & R. R. Boom Co., 34 Minn. 143; Borer v. Lange, 44 Minn. 281.