In re the proceedings by the St. Paul & Northern Pacific Railway Co.

Yanderburgh, J. This is an appeal from an order of the district court of Hennepin county appointing commissioners to appraise damages upon the petition of the respondent railway company, in pursuance of Gen. St. 1878, c. 34, § 17. 1. Such order is a final order in a special proceeding, and hence appealable. Among other things it determined that the lands proposed to be taken were required and necessary for the proposed improvement. The question so determined would not again arise or be considered in the course of any subsequent proceedings, but was determined once for all, and affected a substantial right. In re Jones, 33 Minn. 405. 2. Upon the merits, the first question arises upon the motion of the appellant, the state of Minnesota, to dismiss the petition on the ground that it was not made t© appear that the public interests required the prosecution of the enterprise. The controversy grows out of the attempt by the company to appropriate certain lands belonging to the University of Minnesota, situated on the line of the proposed route of the road. The only lands, however, included in the petition [230] which appear to belong to the university are certain lots in Regents’ addition to Minneapolis. These lots are not used or held for public purposes by the state, and are not contiguous to the university grounds, and are liable to be appropriated in the same manner as lands of private persons. Gen. St. 1878, c. 34, § 15. No good reason, therefore, appears why they might not be taken for public use by the railway company if reasonably necessary therefor. And the necessity or propriety of appropriating these particular lots does not seem to be questioned, if the enterprise is to proceed. The court, it appears, upon the hearing of the petition, was satisfied that the public interests required the prosecution of the enterprise, and we think there was a sufficient prima facie case made to sustain such determination. The court was entitled to consider the nature of the enterprise as disclosed by the record, the location, termini, and extent of the line, as well as the evidence before it of the expenditures and improvements already made, and the facilities for business possessed by the company. It would also take judicial notice of things generally known to the public, such as the general development of commercial interests and the increase of trade and travel, in determining the question of the propriety or importance of extending the proposed line of road. It is unnecessary, therefore, for us to discuss or determine in this case the point raised by the respondent’s counsel in argument whether the legislature have in fact delegated, or could delegate, to the courts the power to determine in what cases the right of eminent domain may be exercised by a railway corporation, organized under and in pursuance of Gen. St. c. 34, tit. 1, with the powers thereby granted; in other words, to determine whether such corporation may be permitted to prosecute the enterprise for which it was organized. This is not considered. Whether, however, the use for which lands are sought to be taken in such cases is a public use, and whether they are reasonably necessary or required therefor by the corporation, or whether a proposed public use would be inconsistent with or subversive of a prior public use to which particular lands sought to be appropriated had already been dedicated, — these are undoubtedly questions for the court, and, so far as the determination thereof may affect the prosecution of a [231] proposed enterprise, it will, to that extent, be under the control of the court. Rensselaer, etc., R. Co. v. Davis, 43 N. Y. 137; In re New York Cent. & H. R. R. Co. v. Metropolitan Gas-Light Co., 63 N. Y. 326; In re New York Cent. R. Co., 66 N. Y. 407; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359. 3. The answer to the petition states that certain other lots embraced therein, and adjoining the grounds occupied by the university, though appearing of record to be owned by one of the regents individually, are in fact the property of the uniyersity. This was denied by the petitioner, and was not established upon the hearing. As respects the university, therefore, no cause was shown why such lands might not be taken. The regents, however, insisted that they were entitled to show, and accordingly offered to show, that if the road were constructed on the line proposed, it would injuriously affect property of the university required for public use, though not actually taken or appropriated by the respondent in these proceedings, and would greatly impair its usefulness for educational purposes. The evidence offered was excluded, and the ruling of the court is assigned for error. We think the court ruled correctly. The mere fact that the lots in Eegents’ addition belonged to the university gave the state or regents no standing in court to raise such question. For the purposes of the petition, lands not embraced therein, or connected with other lands sought to be condemned as part of one entire tract, are not to be deemed affected by the proceedings, so as to authorize the owners thereof to appear and object to the propriety of granting the petition. By section 15, chapter 34, a notice stating the object of the petition, and containing a description of the lands proposed to be taken, is to be served on every person named as owner, incumbrancer, tenant, or otherwise interested therein. And under section 17, the issue as to each party respects the lands described which he owns or is interested in. See, also, section 18. A. cannot object that B.’s lands are taken, nor raise an issue as to other separate’ and independent lots or parcels of land belonging to him, not described in the petition nor included in the proposed improvement, since his rights and interests in such lands are not affected by the condemnation proceedings. We think, therefore, that the court properly declined [232] to consider in these proceedings the alleged injuries to outside lands incident to the operation of the proposed road. Order affirmed.