Wilkin v. First Division of the St. Paul & Pacific R. R.

By the Court Berry, J. For convenience, we will in this opinion refer to the moving parties here as plaintiffs, and to the railroad company as defendant. The important question in the case is whether the notice of intention to apply for the appointment of commissioners, and the petition or application itself, were sufficient to authorize such appointment to be made. The mode of exercising the right of eminent domain, whether by the state itself, or its delegates, rests in the discretion of the legislature, in so far as the legislature is not restrained by the constitution. The legislation under which the defendant claims to have proceeded in this instance, and the only legislation in point, is found in section 13, chapter 1, Extra Session Laws 1857. We do not understand the constitutionality of this legislation to be questioned, [278] or if it be, we are not directed to, nor do we discover, any provision of the constitution which it violates. It is the section cited, then, which is to furnish the rule by which the sufficiency of the application and notice is to be determined. So much of the section as is material tobe consideied, reads as follows : “ Whenever the line of said railroad and branches, or any part thereof, shall be located, and its route determined, the said company may apply to the supreme, district, or county court in session, or any judge thereof in vacation, for the appointment of three commissioners to make an appraisal and award of the value of any and all lands, which are the private property of any person on the line of said railroad and branches, or any division, or part thereof, which shall be designated in such application, and which the said company shall have entered upon, possessed, occupied, or used, or which it may thereafter enter upon, take, possess, occupy, or use for any of the purposes for which by this act the said company is authorized to enter upon, take, possess, occupy, or use lands. The said company shall give notice of its intention to apply for the appointment of such commissioners by publishing the same at least ten days before the time for hearing such application, * * * and upon an affidavit of the publication, * * * the court, or judge, to whom the application shall be made, shall appoint three commissioners, who shall have cognizance of all cases arising on the line or route of said railroad and branch, or any division or part thereof, which shall be designated by said company in such application, and they shall proceed to examine the premises in each case separately, having first given such notice as they may deem reasonable to such owner, guardian or husband, and at least five days personal notice to such owner if resident in the county, * * * .” The plaintiffs contend that the [279] word “designated” refers to the word “lands,” and that therefore the defendant’s application and notice were fatally defective, because the “ lands” entered upon, &c., were not designated, that is to say, particularly described therein. The defendant, on the other hand, contends that the word “ designated” refers to the words “ or any division or part thereof,” so that so far as this particular matter is concerned, the application and notice are sufficient if they specify the division or part of defendant’s railroad in reference to which the appointment of commissioners is prayed for. We think the defendant’s construction correct. The word “designated” occurs twice in the passage which we have quoted from the statute, and in both instances it appears to apply to the same thing. In both instances it immediately follows the clause, “ or any division or part thereof,” to which it therefore naturally may, and, as we think, does refer. The plaintiffs’ construction would make it apply in the first instance to the word “ lands,” and in the second to the word “ cases,” but as these words do not signify the same thing, and as neither the word “ cases,” nor any other of like signification is used at all in that portion of the section which prescribes, (so far as they are prescribed) the contents of the application, we think the plaintiffs’ construction is not natural or reasonable. The incorrectness of the plaintiffs’ construction is made, we think, still more apparent when we consider that if “ designated ” refers to lands, it would be requisite for the application to describe particuularly, not only the lands which the defendant had entered upon, possessed, occupied, or used, but those which it might thereafter enter upon, take, possess, occupy, or use, which latter it would seem to be impossible to describe at the time of presenting the application. - In our opinion, then, it was [280] not necessary that the “lands” referred to should be “ designated,” that is to say, particularly described in the application or notice. The reference to the lands as being on the line of the part or division of defendant’s railroad designated in the application, notice and order of appointment, is a sufficient compliance with the statute. The word “near” found in the application, in the expression — “on and near the line,” &c., if it be objectionable, may well be treated as harmless surplusage, since it does not appear in the notice, nor in that portion of the order of appointment which prescribes the duties and powers of the commissioners. The plaintiffs further urge in support of their motion to set aside the order appointing the commissioners, that the petition or application for such order “ does not state what specific use the lands are to be taken and held for, so that the court may judge whether such use is one in aid of which the right of eminent domain may be exercised, and so as to enable the commissioners to make a just estimate and award of the compensation to be paid.” They further insist that “neither the petition nor the notice of application contains any sufficient description or designation of the lands intended to be taken, or of the owners thereof, or anything which informs any owners of land that their land was intended.” As to the first of these objections we need only say that the statute (sea. 13, before cited) does not require the specific use for which the lands are to be taken and held, to be stated in the petition or application, and therefore, for reasons before given, it is not necessary that such specific use should be therein stated. It does not follow, however, that because such specific use is not stated in the petition, the commissioners would be authorized to appraise lands which the company had no [281] right to take, or that the company could take them if appraised. Neither does it follow that because such specific use is not stated, the company may not be compelled to disclose the intended use before the commissioners, so that the award may be made with reference to the same. As to the second objection, it is a sufficient answer to say that the petition and notice of application contain all the description and designation of the lands and their owners which the statute (sec. 13, supra,) requires. Both of these objections are of a kind to be addressed to the legislature rather than to this court. And while as a matter of fairness, and to make the notice more effectual as a notice, as well as for other purposes, it might have been wise legislation to have required the company to take some or all of the steps, the want of which is objected to in the case at bar, still it is to be borne in mind, that the locating a railroad, and the determining of its route, are ordinarily matters of general notoriety in the localities where they take place; that the commissioners are appointed by a presumed impartial tribunal or officer; that after their appointment they are required to give notice to the owners of lands before proceeding to examine the-same, a.nd finally that the land owner has his right of appeal from their award, to the district court, and the privilege of a trial by jury. The plaintiffs’ motion must be denied.