Duluth Transfer Ry. Co. v. Northern Pacific R.

Dickinson, J. The whole case and argument of the appellant are based on the proposition, asserted in its behalf, that our law (1878 Gf. S. ch. 34, tit. 1) prescribing the method of acquiring private property for public use is unconstitutional, because from the time such proceedings are instituted, and during their pendency, the landowner is deprived of the right of alienation; that this deprivation constitutes a taking of property; and that no provision is made to the end that compensation therefor shall be “first paid or secured.” The premise upon which alone the whole argument of the appellant rests is wholly untenable. The institution and pendency of such condemnation proceedings does not deprive the owner of the right of ■alienation. He may sell and convey his entire estate wholly unrestrained thereby. Nor is it to be supposed that his estate isj rendered less valuable, or that he cannot realize its full value, by reason of the pendency of such proceedings. To whatever extent the proposed appropriation of the property may injure the owner, it is to be legally presumed that just compensation therefor will be made to him before he is deprived of any of the rights incident to ownership. If he wishes to sell, transferring to the purchaser the right to receive such compensation, presumably he may realize the unimpaired value of the property. If it be true that the property is rendered less salable by reason of the proposed appropriation, still that is unavoidably incident to any exercise of the undoubted power of the state to take property for necessary public uses, and to prescribe a method for determining the necessity and right to do so, and the compensation to be paid therefor. State Park Commissioners v. Henry, 38 Minn. 266, (36 N. W. Rep. 874.) The injury resulting merely from the institution and prosecution of such proceedings is no different from that which would follow the disclosure in any other manner of an intention to appropriate the property in invitum. A legislative enactment, directing the condemnation of particularly-described premises for a public purpose, would have the same effect. The constitution makes no provision for a preliminary payment or securing of com [221] pensation for such injurious consequences as may be incident to or result from the disclosure of the fact that property is about to be taken under the law of eminent domain. Order affirmed. (Opinion published 53 N. W. Rép. 366.)