Town of Lyle v. Chicago, Milwaukee & St. Paul Ry. Co. , 55 Minn. 223 ( 1893 )

Mitohell, J.

This action was brought under Laws 1889, ch. 222, to recover damages for defendant’s neglect to build a highway crossing.

The defendant rests its defense on two propositions: First, that ■there was no highway across its railroad at the point named; second, that the statute referred to is, as applied to the alleged highway, unconstitutional. We find it necessary to consider only the first.

The highway is claimed to have been laid out by the town supervisors in 1875. The law then in force regulating such proceedings was Laws 1873, ch. 5, as amended by Laws 1875, ch. 35, which, as subsequently amended, is 1878 G-. S. ch. 13. The condition of things when these proceedings were instituted in 1875 was as follows: The defendant, a foreign corporation operating a railway in this state under authority of our laws, owned in fee a strip of land one hundred (100) feet wide, running north and south through the east half of the southeast quarter of section two (2) and'the northeast quarter of section eleven (11) in the town of Lyle. There were, no buildings and no one residing on this strip, nor was it inclosed by a fence, but defendant was in the actual possession,, and had built and was maintaining its railroad upon it, over which it was daily running its trains. The defendant maintained stations along its road, one of which was within the town of Lyle, at each of which it kept a regular ticket and freight agent for the transaction of its business. The remainder of the two above-described government subdivisions was in the possession and occupancy, respectively, of two of the petitioners for the road, Parmenter and Talouse.

We next turn to the proceedings themselves. The petition for the highway assumed to give the names of all the owners of the land over which the road would pass, except of one tract, (not here involved,) who was stated to be unknown; but it nowhere stated the name of the defendant as one of such owners, nor was its land anywhere described, nor was there anything in the petition to show that the proposed highway would pass over its land, except that it gave the route or line of the highway, which, if compared with the actual location of defendant’s land, would show that it would cross it.

The notice of the time and place of hearing the petition made out by the supervisors described the line of the proposed highway, and assumed to give the description of the several tracts of land over which it would pass; also the names of the several occupants thereof. Defendant’s name was not stated in this notice (which was not addressed to any one) as owner or occupant of any of these tracts; neither was its land described or referred to at all, except that the entire government subdivisions, of which it was a part, were described as a whole, and the occupants thereof stated to be Parmenter and Talouse, respectively.

This notice was never served on defendant, unless posting copies thereof in three public places in the town constituted such service. The defendant was not made a party to these proceedings, nor did it ever appear therein, and no jurisdiction of it or of its property was ever acquired, unless by virtue of the facts above stated. The part of the alleged highway across defendant’s land has never been opened for travel or in any manner used by the public; on the contrary, the defendant has ever remained in the exclusive and uninterrupted possession of the land.

On this state of facts we are of opinion that the supervisors never acquired jurisdiction, and that, as to defendant, the proceedings are wholly void, for the reason that no notice thereof was ever served on it. It is fundamental that a party whose property is to be taken for public use must have notice and an opportunity to be heard, and this is just as applicable to railway companies as to any other property owner. In proceedings of this kind notice by publication or by posting may be sufficient. But reasonable notice of some sort is absolutely essential and jurisdictional, and the notice required by the statute must be given in strict conformity to the statute.

If this defendant was “an occupant,” within the meaning of the statute, (section 35,) then the law was certainly not complied with. If it be said that the statute makes no provision for service on an occupant in a case like this, and that the provision for service on station or ticket agents is inapplicable, then so much the worse for the statute, for the law, to be valid, ought and must provide for some mode of service. But, assuming that the defendant was not an “occupant” within the meaning of the law, and that that term only applies to one residing on the land, then the posting of notice of hearing, and possibly the prior posting of the petition itself, is the only notice of the proceedings which the law provides for such cases. This kind of notice is so meager, and so little likely to come to the knowledge of parties not actual residents of the neighborhood, that it would at best barely amount to reasonable notice, and hence the requirements of the statute in that regard should be very strictly and fully complied with.

The statute requires that the petition shall state the names of the owners of the lands, if known, over which the road is to pass. The petition in this ease did not state the name of defendant as one of such owners, or state that the name of the owner of its tract of land was unknown. In fact the petition could not have truthfully stated the latter fact, for the actual possession and use of its land by defendant was a physical fact, patent to the eyes of the petitioners. The statute also requires that the notice of hearing on the petition shall specify the several tracts of land through which the road will pass.

(Opinion published 56 N. W. Rep. 820.)

The manifest object of this is to give notice to the owners of the several tracts that their land will be affected by the proceedings. The notice in this case did not specify defendant’s land as one of the tracts through which the road would pass, unless done by specifying as a whole the governmental subdivisions of which it was a part, but as occupants of which it gave the names of other parties, the name of defendant being neither given nor referred to. There was in fact nothing in either the petition or the notice that would advise or suggest to any one that the highway would pass over defendant’s land, unless by comparison of the route of the highway with a sectional map of the township, showing the actual location of defendant’s railway on the ground. This would be a compliance with neither the letter nor the spirit of the statute. It will not do to say that defendant’s tract of land was specified' because the government subdivisions in which it was situated were specified and stated to be occupied by those persons who were occupants of the balance of these subdivisions. With equal force it might be argued that if two farmers had each an eighty acre farm in the same quarter section it would be sufficient notice to one of them to describe the whole quarter section as a single tract, and give the name of the other as the occupant of the whole; or, to carry the proposition still further, that, if four farmers had each 160 acres in the same section, to specify the whole section as one tract, and give the name of one of them as the occupant of the whole, would constitute sufficient notice to the other three. This will not satisfy the requirements of the statute. For the want of proper notice the supervisors never acquired jurisdiction of defendant, and as to it the proceedings are void. This renders it unnecessary to consider any of the other questions discussed by counsel.

Order reversed.