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April, 1882, by a unanimous vote, passed the the charter of the city of St. Paul relating to ordinance in question (No. 286), which is as the powers of the city council over public follows:

grounds within its limits, and which were in “Section 1. That permission be, and the force in 1882, when Ordinance No. 286 was same is hereby, given to the Chicago, Milwau-passed. The charter then in force was Spec. kee, & St. Paul Railway Company to take Laws 1874, chap. 1, and amendments. Subdown and remove the old freight house, which chapter 4, § 7, of that act, provided that "the is owned and used by said company, standing common council shall have the care, supervinext below Sibley street on the levee, and to sion, and control of all public highways, erect a new freight building upon the site now bridges, streets, alleys, public squares, and occupied by said old freight house, provided grounds, and parks and sewers, and all other that ihe new structure may be extended a dis- public improvements and public property tance of 10 feet nearer the Mississippi river within the limits of said city.' The able counthan the old one, if the city engineer shall be sel for the defendant seems to rely with confiof the opinion that the same shall in no manner dence on this as giving authority to the cominterfere with the navigation of said river. And mon council to pass the ordinance in question. provided further, that said new freight-house He says: “Statutory provisions of this kind shall be built substantially in accordance with have uniformly been held to confer upon city the plans on file in the office of the city clerk. councils authority to grant the railway comAnd provided that the basement or lower story panies the right to occupy public streets; at fronting on the river shall be laid with sub- least, as against the city and the public. We stantial floor, and said lower story, together have examined all the authorities cited by with the platform on the river front, and the counsel, and submit, with all deference to him, railway track along the said river front shall that none of them support his contention. Some be open and subject to the use of the public of these cases merely hold that a certain use for all wharfage and transfer purposes without of a street, as by erecting telephone poles and charge, and a sufficient platform and entrance wires, or constructing a horse railroad, is a for drays shall be provided for said lower story proper "street use," and imposes no additional at the end of said building.

servitude on the street; while others are "Sec. 2. Nothing in this ordinance contained merely to the effect that, under a general grant shall be construed as waiving any of the rights of power to regulate the use of streets, the city of the city of St. Paul in and to the real prop- council has the power to prescribe the manner erty proposed to be occupied by said building in which, or the conditions upon which, streets

" Sec. 3. This ordinance shall be in force may be occupied for a legitimate “street use. from and after its passage.'

In Gregsten v. Chicago, 145 Ill. 451, the city Thereupon the defendant proceeded and had an express grant of authority to do what erected, and bas ever since maintained, the it did. In St. Louis v. Western U. Teleg. Co. freight house, in accordance with the provi- 149 U. S. 465, 37 L. ed. 810, the only thing desions of the ordinance.

cided was that the city was authorized by the It may be here suggested that the authority of Constitution and laws of Missouri to impose defendant's grantor, the St. Paul, Minneapolis, upon a telegraph company putting its poles in & Manitoba Railroad Company, under its char- the streets of the city a charge in the nature of ter (Laws 1857, Ex. Sess., chap. 1),'to construct rental for the use of the streets for that purits railroad upon and along, across or over any pose. Neither party was in position to quespublic or private highway,” etc., "if the same tion the authority of the city to permit the shall be necessary," does not extend to or con company to place its poles in the streets, for it template the construction upon a highway of i was by virtue of the exercise of this power stations, depots, freight houses, or other build that the city claimed the right to make the ings, but applies only to railroad tracks, where charge, and the permit granted by the city in the use of the bighway by the railroad com- the exercise of this assumed power constituted pany will be concurrent with that of the gen. the only right on part of the company to eral public, and not exclusive. Wayzata v. I put its poles in the street. We are of the opinGreat Northern R. Co. 50 Mind. 438. It is ele- ion that the care, supervision, and control" mentary law that a municipal corporation has of streets and public grounds, and the power no proprietary rights in the streets, levees, or to regulate their use, which is the usual and other public grounds within its limits. What- ordinary grant of power to municipal corporaever rights it has it holds merely in trust for tions, and which is certainly as broad as the the public. It is equally elementary that all power granted by the section above quoted, is its powers over such public grounds are de not sufficient to empower them to authorize rived from the legislature. It can exercise no the use of such grounds for the purpose even power over them, except such as is given it by of constructing and operating thereon a comthe legislature, either expressly or by necessary mercial railway, much less of erecting thereon implication. It is also well settled that a grant depots, freight houses, or other buildings which of power to a city to grant any privileges or exclude the general public from the concurrent rights in streets or other public grounds is to be use of a part of the street or other public strictly construed, and not enlarged by con- ground. Dill. Mun. Corp. $ 705, and cases struction; and, if there is a fair or reasonable cited; Lackland v. North Missouri R. Co. 31 doubt as to the existence of its power, it will Mo. 180. In this state these would not be be resolved against the municipality. Dill. proper “street uses," but the imposition of an Mun. Corp. $ 705; St. Louis v. Bell Teleph. Co. additional servitude upon the street. Section 8 96 Mo, 623, 2 L. R. A. 278.

of the same subchapter of the city charter With these general principles in mind, we gives the common council power to vacate and come to the consideration of the provisions of discontinue public grounds, etc., upon certain

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conditions, but it will not be claimed that this levee as a site for its freight house. It follows section has any application to the case in hand. that this ordinance is invalid because not within

The only other provision relating to the the granted powers of the common council. power of the common council in the premises We have not overlooked the difference beis $ 11 of the same subchapter, which reads as tween a "street" and a "levee.” A street is follows: "The common council shall have designed exclusively for the purpose of travel power and authority by a vote of three fourths and intercommunication. The word “levee,” of all the members elect of said council to as used in the West and South, means a landgrant the right of way upon, over, and through ing place for vessels, and for the delivery of any of the public streets, highways, alleys, merchandise to and from such vessels, and, as public grounds, or levees, of said city to any incident to that, for the temporary storage of steam railway or horse railway company or the merchandise. Hence, some things might corporation upon such limitations or conditions be a proper use of a public levee which would as they may prescribe by ordinance.” We may constitute a misuser of a street. For example, consider this in connection with Gen. Stat. the erection and maintenance of a warehouse 1878, chap. 34, § 47 (Gen. Stat. 1894, § 2642), as a place for the receipt and delivery and cited by counsel for defendant, and which temporary storage of goods while in transit reads as follows: "If it became necessary in would probably be a proper use of a levee, the location of any part of a railroad, to oc- provided it was open to the common use of all cupy any road, street, alley, or public way, or on the same terms. This would be in aid of any part thereof, it shall be competent for the and necessary to the main object for which a municipal or other corporation or public officer levee is designed. But this is a very different or public authorities owning or having charge thing from giving to a particular person or thereof and the railroad company to agree corporation the right to occupy a levee as a site upon the manner and upon the terms and con- for its warehouse solely for its own business, ditions upon which the same may be used or and to the exclusion of the general public, as occupied; or such company may appropriate was attempted by the ordinance in question. so much of the same as may be necessary for The fact that the common council stipulated the purposes of said road in the same manner that a small part of the structure might be used and upon the same terms as is herein provided by the public for wharfage and transfer purfor the appropriation of the property of indi- poses does not alter the case. viduals”. Section 11 of the chapter quoted It can bardly be necessary to say that the above clearly refers only to trackage”; that is, fact that the defendant may bave expended its to the right to construct and operate railroad money on the faith of this ordinance creates no tracks on the streets or other public grounds. i equitable estoppel against the public, whose This is conclusively shown by the term “right mere trustee the city is in prosecuting this suit. of way". It does not give the common council The defendant was bound to take notice of the any authority to barter away, or transfer to a extent of the powers of the common council railroad company, the right to use any part of from which it obtained the ordinance. The the streets or public grounds as a site for de result is that the former decision is adhered to, pots or freight houses to the entire exclusion of although, as to the point now considered, upon the public therefrom. This seems to us too a different ground. plain to require argument. It also seems to us that the provision of the General Statutes On January 20, 1896, the following order cited is subject to the same limitation. The was made: phrase, “in the location of any part of a rail- It appearing from the petition of the defendroad,” clearly indicates to our minds that this ant that its counsel overlooked and failed to also refers only to “trackage,” and that it is call the attention of the court to Gen. Stat. but the counterpart and equivalent of $ 11 of 1894, $ 2680, it is ordered that further arguthe city charter. It was never intended to au- ment be allowed, but only as to the force and thorize municipal authorities to sell or give effect of said section, the same to be submitted away to railroad companies, as sites for depots on printed briefs either on or before the last and other buildings, lands in which they bad day of the present term, or on the first day of no proprietary interest, and wbich they held the next term of this court, at the election of merely as trustees for the public. Any such counsel for the plaintiff. power would be an exceedingly dangerous one to vest in municipal authorities, and it would The second rehearing baving been bad, require very clear language to that effect to Mitchell, J., on September 28, 1896, deliv. warrant a court in holding that the legislature ered the following opinion: intended to grant them any such power. It is somewhat unfortunate that the questions Whether the authority of railway corporations involved in this case have been presented and to acquire rights in streets and other public considered piecemeal. On the trial in the lands by the exercise of the right of eminent court below the main issue was whether the domain is limited to "trackage" or "right of defendant had acquired title to the premises by way," it is not necessary now to consider. If adverse possession, and very little attention there is any other provision of statute contain- seems to have been paid to the rights, if any, ing any grant of power to the common council of the defendant under City Ordinance 286; of St. Paul over public grounds within its that question having apparently been brought limits, our attention has not been called to it by into the case only incidentally and almost accounsel, neither have we found it. Nowhere cidentally. On the first argument of the apdo we find any grant of power authorizing the peal in this court, the discussion was almost common council to give the defendant the wholly devoted to what had been the main isright to use and occupy any part of the public I sue in the court below. The result was that we

disposed of the ordinance, without much con- | with the platform on the river front, and the sideration, by merely saying that it amounted railway track along the said river front, shall to nothing more than a revocable license. be open and subject to the use of the public Upon the reargument of this question the for all wharfage and transfer purposes, without main point discussed, and the only point con- charge, and a sufficient platform and entrance sidered, was wbether the state had delegated to for drays shall be provided for said lower story the city authority to enact the ordinance in at the end of said building. question. We held that the ordinance was "Sec, 2. Nothing in this ordinance contained invalid, because in excess of the granted pow. shall be construed as waiving any of the rights ers of the city. After this opinion was filed, of the city of St. Paul in and to the real propcounsel for the defendant applied for further , erty proposed to be occupied by said buildreargument, on the ground that they had ing.” overlooked, and failed to call the attention of We shall, without further discussion, take the court to, Gen. Stat. 1894, § 2680. A fur- as settled that the premises in question were ther reargument was thereupon granted as to dedicated by the owner, Hopkins, to public the force and effect of this section. Upon an use, as a "levee" or "landing.” The word examination of the case after it was submitted levee” bas a well-understood meaning in the on this last reargument, it occurred to us that West and South. It is a place, on a river or there might be a serious question as to the other navigable water, for lading or unlading power of the state itself to grant any such au goods, or for the reception and delivery of ihority to the city over public grounds dedi- passengers. It is either the bank, or the cated to a specific public use. As this ques. wharf, to or from which persons or things tion was only briefly discussed by coupsel for may go from or to some vessel in the contiguthe defendant, and not at all by counsel for ous waters. State v. Randall, 1 Strobh. L. the plaintiff, we, on our own motion, requested 111, 47 Am. Dec. 548;_State v. Graham, 15 additional briefs on that point. After an ex. Rich. L. 310; Coffin v. Portland, 27 Fed. Rep. amination of the additional briefs filed in re. 418. It means the land contiguous to a river sponse to this request, we are inclined to think or other navigable water, used as a landing that perhaps a more important question was place for water craft, and for the transfer of whether the purposes for which a portion of freight and passengers to and from such craft. this levee was granted to the defendant by In a general way, this is at once the definition this ordinance constituted a diversion of it and limitation of the particular and specific from the particular and specific public use to public use to which this land was dedicated by which it was dedicated. In order that the pre- the owner. It is elementary and fundamental cise questions involved may be clearly in mind, law that, if a grant is made for a specific, limwe shall again quote in full the statute now ited, and definite public use, the subject of relied on, and also the ordinance enacted in the grant cannot be used for another and dif. pursuance of it, and which defendant claims ferent use. Its use must be restricted to that constitutes a binding contract between it and for which it was dedicated. Even the legislathe city, an impairment of the obligation of ture itself bas po power to destroy the trust, or which is forbidden by the Federal Constitu- to divert, or to authorize a municipality to di. tion.

vert, its subject to any other purpose, either "The common council, board of aldermen, public or private, inconsistent with the particutrustees, commissioners, or other corporate au- lar use to which it was granted. Neither the thorities of any city, town, village, or other state nor the municipality within which the municipal corporation, are hereby authorized property is situated has any proprietary interand empowered to grant, sell, convey, or lease est in it which either of them can seil or diany public grounds or place within their cor vert to any use inconsistent with the purpose of porate limits to any railroad corporation, sub- the dedication or grant. The state holds such ject nevertheless to all the rights of the origi- lands merely in its sovereign capacity, in trust nal proprietors on such grounds." Gen. Stat. for the public for the purposes for which it 1894, § 2680. This statute was enacted over was dedicated. If the legislature should atthirty years ago. Gen. Laws 1866, chap. 41. tempt to divert it, or to authorize its diversion, Ordinance 286 reads as follows:

the property would not revert to the donor, or “Sec. 1. That permission be and the same the public easement be extinguished. The act is hereby given to the Chicago, Milwaukee, & of the legislature would be a mere nullity. St. Paul Railway Company to take down and The cases relied on by defendant's counsel deremove the old freight house, which is owned cide nothing inconsistent with these proposiand used by said company, standing next be- tions. See Portland & W. V. R. Co. v. Portlow Sibley street on the levee, and to erect a land, 14 Or. 188, 58 Am. Rep. 299; Ninois new freight building upon the site now occu- & St. L. R. & Canal Co. v. St. Louis, 2 pied hy said old freight bouse, provided that Dill. 70. It is frequently stated that the power the new structure may be extended a distance of the legislature in the absence of special reof 10 feet nearer the Mississippi river than strictions, over public places held for the use the old one, if the city engineer shall be of the and benefit of the public, is unlimited; but we opinion that the same shall in no manner in- think that in every wellconsidered case it terfere with the navigation of said river. And will be found that this general proposition provided further that said new freight house is qualified by the statement, in substance, shall be built substantially in accordance with that this power must be exercised in subthe plans on file in the office of the city clerk. ordination to, and in conformity with, the And provided, that the basement oi lower purposes of the dedication. However, story fronting on the river shall be laid with narrow or unreasonable definition should be substantial floor, and said lower story, together placed upon the nature of the use to which the

property has been dedicated, nor any uprea- eration may be cut down by construction sonable limitation imposed upon the discretion within the limits of the legislative powers, and of the legislature in regulating that use. held effectual to authorize a municipality to Much must necessarily be left to the discretion grant to a railroad company any rights or of the legislature as to the best manner of regu- privileges in public grounds which the legisla. lating that use, and of improving the property ture itself might have granted; that is, any for that purpose; and the mode or manner of rights or privileges consistent and in conformexercising that use must be allowed to keep ity with the purposes for which such grounds pace with changed conditions and consequent were dedicated. We cannot agree with the new necessities of the public. It is only when contentions of plaintiff's counsel that this genthere has been a clear diversion of the prop- eral statute has been by implication repealed erty to a use inconsistent with that for which as to the city of St. Paul by subsequently en. it was dedicated that courts would feel war- acted provisions of the city charter, or that the ranted in interfering; and this will usually be statute does not apply to public grounds of the largely a question of fact, depending upon the character of this level. We are therefore facts and circumstances of each particular brought to the consideration of the provisions case. No doubt the legislature, as the repre- of the ordinance itself, as to whether the rights sentative of the public, has the power, either and privileges assumed to be granted to the directly or indirectly, through the municipality, defendant are in conformity with the use for or even througb a private corporation or per- which the land was dedicated, or are so inconson, to improve these premises for "levee pur-sistent with and foreign to that use as to poses.” It might construct, or authorize the amount to an unauthorized diversion of it. construction and maintenance of, wharves or Unfortunately the record furnishes comparawarehouses thereon as aids to and conveniences tively little light on this question, because, for for public travel and traffic to and from craft reasons already suggested, the case was not navigating the river, and to impose, or to au- tried on any such lines. In fact, no such isthorize the imposition of, charges for the use sue seems to have been tried at all. All that of such structures sufficient to defray the cost the record clearly shows is the provisions of of their construction and maintenance. This the ordinance itself, and the further fact that would not only be consistent with, but in aid this freight house has been constructed and is of, the principal use for wbicb the land was maintained in accordance with those providedicated. The legislature might also grant, sions. It perhaps also fairly appears that there or authorize the granting, to any person or are some 1,400 feet front of public levee, incorporation having traffic with vessels on the cluding that situated within the plat of St. river, the exclusive use of so much of a levee Paul proper, and that this building is about as was reasonably necessary for his or its busi- 350 feet long on the river front by about 50 ness with such vessels,--provided it did not un- feet wide. The ordinance is entirely silent as reasonably interfere with the use of the levee to the length of time for which the privilege by the remainder of the public, -until such is granted to the defendant, or as to the uses time as the needs of the public required the to wbich the structure may be devoted, except termination of such exclusive use. The con- as to the lower story. Neither does it in terms struction and maintenance of a permanent reserve to the city any rigbt to supervise or structure do not by any means necessarily regulate the manner of its use. The record is constitute a misuse of a levee. Like the grain also practically silent as to the purposes for elevator referred to in Illinois & St. L. R. & which the defendant is actually using this Canal Co. v. St. Louis, supra, it might be in build or as to the extent or nature of deaid of the very use for which the public levee fendant's traffic with vessels or other craft is designed. "To give a public levee, or any navigating the river. Under the terms of the part of it, to a railway company, to be used as ordinance, the defendant might devote the à site for its depot, or for its general freight whole of the building, except the lower story, warehouse, without reference to its traffic by to uses wholly foreign to "levee purposes, way of the transfer of passengers and freight and entirely disconnected with its exchange to and from vessels navigating the adjacent traffic with craft navigating the river; and, river or other navigable water, would, in our for anything the record shows, such may be opinion, constitute a diversion of the property the fact. Neither does it appear whether there to a use foreign to and inconsistent with that exists any present public necessity for the use for which a levee is dedicated.

of this land for levee purposes. This last conSo much for the general principles of law sideration would, of course, pot be controlling, applicable to the case. The language of. for the fact that the land is not presently $ 2680 is broad enough to permit, if not re needed for levee purposes would not prevent quire, a construction which would effect a the city or state, as the trustee of the public, purpose which the legislature has no power from objecting to a diversion of the property to authorize. It would authorize the abso-to a use wholly foreign to or inconsistent with lute sale or gift of any public ground, for that to which it was dedicated; but, for reawhatever purpose dedicated, to any railroad sons to be stated bereafter, it would be matecompany, to be used for any purpose for rial in determining whether the city or state, which such company might hold or use real as such trustee, had a right to recall or revoke estate, and thus wholly extinguish all rights a special privilege previously lawfully granted. of the public in the premises. The legislature But the fact, if it be a fact, that the ordinance has no such unlimited power over land dedi assumes to grant to the defendant rights and cated to a specific and particular public use, privileges greater than the city was authorized but it does not follow that the statute is wholly to grant, will not render the ordinance wholly void and ineffectual for any purpose. Its op- void. It would still be valid to the extent of such rights and privileges as the city was au- whenever required by the needs of the public thorized to grant. We shall not stop to con- in the use of it for the purpose for which it sider upon which party rested the burden of was dedicated. This is an implied condition proof on these matters, for, in view of the of every such grant, for there can be po irrevomanner in wbich the case was tried and sub-cable license, as against the rights of the pubmitted, we are satisfied that final judgment lic to the full enjoyment of its easement in the for or against either party on these questions property; and, as to when a condition of things ought not to be rendered on the present record. has arisen that public interests require a revoJustice requires that the cause be remanded to cation of the grant or license, much must be the trial court, to determine, in accordance I left to the discretion of the state or municipalwith the rules we have endeavored to lay ity, as the trustee of the public. But such a down, whether the privileges granted by the license, if lawfully granted, and subsequently ordinance do or do not amount to an unlawful acted on by the licensee, is not revocable, in diversion of this part of the levee to a purpose the ordinary sense of the word; that is, it is inconsistent with that for which it was dedi- not revocable at the mere arbitrary pleasure or cated. If they do not, either in whole or in whim of the state or municipality. The li. part, then the order for judgment in favor of censee in such a case has vested rights under the plaintiff should be further modified so as the license, subject only to the paramount to make it subject to the right of the defend rights of the general public in the property for ant to maintain this building in accordance the use to which it was dedicated. We might with the terms of the ordinance. If, on the also add that, if the privileges granted to the other hand, such privileges, in their entirety, defendant by this ordinance were, in whole or constitute a plain diversion of the premises to in part, authorized as a legitimate use of the an unauthorized use, the trial court should so property for levee purposes," the fact that find, and in such case the present order for such privileges, thus authorized, may incidentjudgment would stand unmodified in that really benefit the defendant in a way not strictly gard. If, however, the court should find that germane to “levee purposes” would not renwithin the rules already suggested the privi- der the grant a diversion of the property to an leges granted by the ordinance were in part unauthorized use. We may be pardoned for authorized, but in part unauthorized, then the adding the suggestion that, inasmuch as the court should determine how far they were au- plaintiff has accomplished the main purpose thorized, and how far they were not; that is, of this suit by establishing its title to the whole how much of the levee is reasonably required of the premises in dispute as a public levee, as a site for a freight house for the accommoda- and also its right of immediate and exclusive tion of defendant's traffic as common carrier, possession, subject, only, to the right of the with craft navigating the contiguous river, and defendant, under the act of the legislature, to cut down the operation of the ordinance to the maintain certain railroad tracks across the limits to which its provisions were authorized, property, and to whatever rights it may have, and modify the order for judgment accord- under this city ordinance, to maintain this ingly.

freight house on a certain portion of the propIf it be objected that this furnishes no defi. erty, and as nothing remains to be determined nite and exact rule, the answer is that such in- except the extent of these rigbts under the or stances are not infrequent in the law, and one dinance, it would seem that two great and proof the most useful functions of the judiciary gressive organizations, like the plaintiff city is the exercise of a sound judgment and com- and the defendant railway company, ought to mon sense in such cases. As already suggested, be able, without further prolonging this alno such narrow construction of the term "levee ready protracted litigation, to adjust this matpurposes” should be adopted as to deprive the ter, on the legal lines suggested in this opinion, defendant of any privileges properly granted on a liberal basis, that will at once protect the to it, or to limit too narrowly the reasonable rights of the public and the defendant comdiscretion of the state or city in regulating the pany. use of the property; por, on the other hand, Cause remanded for a new trial, but only should so lax a construction be indulged in as of the issue considered in the foregoing opinto sanction a plain diversion of it to a use for- ion, and for such modification of the findings eign to and incompatible with that to which it of fact and conclusions of law as may be made was devoted by the owner. Any grant of necessary by the determination of such issue. privileges upon lands dedicated to a particular public use is necessarily subject and subordi. Start, Ch. J.: I dissent. nate to the rights and necessities of the public, and may always be revoked and terminated Buck, J.: I also dissent. 34 L, R. A.

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