Winona & St. Peter Railway Co. v. City of Watertown

Citations

• 4 S.D. 323
• 56 N.W. 1077
• 1893 S.D. LEXIS 80

Syllabus

<p>1. The power of eminent domain resides in the state as an element of its • sovereignty, and it belongs to the legislative department of the state to determine when it may be exercised.</p> <p>2. The exercise of that power may by the same authority be delegated to municipalities or other public agents.</p> <p>3. Property already devoted to a public use, although held by a municipality or other corporation, may be appropriated under the powpr of eminent domain.</p> <p>4. But in every case of claimed delegated power there is the preliminary question whether the power, claimed has really been conferred, and that is a question for the courts.</p> <p>5. Mere general language granting the power to condemn, will not be taken .to include the power to appropriate land already subjected to a public use, where the hew use proposed will materially interfere with the former.</p> <p>6. When the trial court finds upon sufficient evidence that the laying out and opening of a public street across the tracks and depot grounds of a railroad company would so materially interfere with the usual, proper and necessary public use of the same by the company as to be inconsistent therewith, it will be held, as a matter of law, that such power is not conferred by the general and ordinary authority given to the municipality to lay out and open streets and to condemn land therefor.</p> <p>7. Held, further, that under the evidence in this case such conclusion would not be affected by proof of the fact that the municipality had provided for the vacation of an existing street across said depot grounds, parallel with the proposed new street, and a block and a half further east.</p> <p>(Syllabus by the court.</p>