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mencing on the main line of the St. Paul & Duluth railroad at a point in the southwest quarter of section 18, town 42, range 20, in the county of Pine, and state of Minnesota, and running thence in the most feasible line to Kettle River, in section 10 of said town and range, with an extension north-eastwardly up and near to said river to the north line of town 42, range 20, aforesaid, with a spur track, and extension southerly from said main line down and as near as practicable to said river to the south line of said township, numbered 42, and to operate the same with its locomotives, cars and appliances for the transportation of passengers and freight between the points aforesaid and in connection with the said St. Paul & Duluth railroad.”
That the commencement of said corporation dates from August 1, 1886, and is to continue for thirty years from that date, and the capital stock of said company was fixed at $100.000.
Second–That the Kettle River railroad company constructed so much of its said line as extends from the main line of the St. Paul & Duluth railroad to the village of Sandstone, being about five miles in length, in the year 1886.
Third—That said line of road after it was constructed, and up to about March 1, 1890, was operated and maintained by the St. P. & D. R. R. Co., and trains over it were operated in connection with trains running over the St. P. & D. R. R..
Fourth-That from about March 1st, 1890 to about May 17th, 1890, said line of road from Sandstone to Sandstone Junction, was operated in a similar manner by the Eastern Railway Co. of Minnesota.
Fifth—That since May 17th, 1890, and up to the present time said line of road has not been operated, or kept in condition, nor have any trains of cars, passenger or freight, been run upon and over said road, and the lawful business of said corporation has been altogether suspended, so far as the operation and maintenance of said line of railroad is concerned.
Sixth-That all the stock of the Kettle River railroad company is owned and held by the St. Paul & Duluth Railroad Company.
Seventh-That under date of March 1st, 1890, a contract or lease of the said line of railway of the Kettle River Railroad Company, its property and franchises, was duly made, executed and delivered, between the said Kettle River Railroad Company, party of the first part, as lessor, the Eastern Rail
way Company of Minnesota, party of the second part, as lessee, and the St. Paul & Duluth Railroad Company as party of the third part, whereby there was leased and delivered to the party of the second part said line of railway, the property and franchises of said Kettle River Railroad Company, with the right to collect and receive all tolls, revenues and income arising in any way from the operation, rental or use of said property or facilities, for the period of ten years and four months from said March 1, 1890, or until July 1st, A. D. 1900.
Eighth-That by the terms of said contract or lease the Eastern Ry. Co. of Minnesota, party of the second part and lessee covenanted and agreed, during said period, to manage, operate, maintain, repair and renew as shall be required by law or as may be otherwise necessary or advisable from time to time the line of railway owned by the lessor.
Ninth-That said contract or lease also provides that if the lessee shall at any time make default in any of the payments due thereunder and such default shall continue 30 days, or shall fail to perform any other of its covenants therein contained, and such failure shall continue for three months after notice in writing, the lessor may at once enter upon the claimed premises and expel the lessee, and determine the estate granted, without prejudice to any claims or demands that the lessor may have under said lease or remedies to which it might otherwise be entitled.
Tenth-That there is no evidence to support the allegations of the petition with reference to the Great Northern Ry. Co.
The Eastern Ry. Co. of Minnesota, the lessee of the abandoned line of road belonging to the Kettle River R. R. Co. does not occupy such a relation thereto so far as the public is concern as would justify the commission in making an order directing said company to operate said line. The commission cannot compel a specific performance of a contract. The questions arising out of said-lease, are questions between the companies parties thereto, which can only be settled in the courts, and the petition so far as it relates to the Eastern Ry. Co. of Minnesota is therefore hereby dismissed.
It is also dismissed so far as the Great Northern Ry. Co. is concerned for the reason that there is no evidence to support the averments with reference to this company.
It is not competent for the commission to make any order on the St. Paul & Duluth R. R. Co. which appears from the evidence to be the owner of all the stock of the Kettle River R. R. Co.
The ownership of the stock may change at any time, and the fact that at the time of the leasing the St. Paul & Duluth Railroad Company was the owner does not give this company such a standing before the commission as would justify any order upon said St. Paul & Duluth Railroad Company. The case so far as it affects this company is therefore dismissed.
The Kettle River Railroad Company is the corporation which was created and organized to locate, construct and operate this line of road from Sandstone to Sandstone Junction. It is the corporation which owes a duty, in relation thereto, to the public which it cannot be permitted to evade or disregard. It is a public duty and the performance of it is the chief end and object of its existence, and is the condition and consideration upon which it received its grants and franchises from the state, and the suspension of its duty towards the public is a suspension of its lawful business which calls for the intervention of state authority.
The commission, therefore, makes its order upon the Kettle River Railroad Company, directing and requiring said company to open, operate and maintain in good condition its line of rail. way from Sandstone to Sandstone Junction, in this state, in accordance with its articles of incorporation and in accordance, also, with the rightful demands of the public in relation thereto, or that said company cause the same to be done on or before the 1st day of July, 1891. By order of the commission,
A. K. TEISBERG, Secretary. Adopted May 27, 1891.
To the Kettle River Railroad Company:
In the matter of the complaint made by Robert A. Smith, H. B. Hoffman and F. B. Richardson, residents and property owners of the town of Hinckley, against you, the said Kettle River Railroad Company and certain other railroad companies of the State of Minnesota:
It appearing to the satisfaction of this commission in the investigation thereof, that you, the said Kettle River Railroad Company, being a corporation of the State of Minnesota, created and organized to locate, construct and operate a line of railroad from Sandstone to Sandstone Junction, in Pine county, in said state, have located and constructed said railroad from the main line of the St. Paul & Duluth Railroad to said village of Sandstone; and it appearing further that, since May 17, 1890, up to the date of this order, said line of railroad has not been operated or kept in condition, and that no trains of cars, passenger or freight, have
been run upon and over said road, and that the lawful business of said corporation has, during the period mentioned, been altogether suspended so far as maintenance and operation of said line of road is concerned;
Now, therefore, the Railroad and Warehouse Commission of the State of · Minnesota hereby recommends and directs that you, the said Kettle River
Railroad Company, be required to open, operate by running at least one train per day each way thereon, and maintain in good condition the line of railioad from Sandstone to Sandstone Junction, in this state, in accordance with your articles of incorporation and in accordance with the rightful demands of the public in relation thereto, or that you cause the same to be done, on or before the first day of July, 1891, and hereof fail not.
By order of the Railroad and Warehouse Commission of the State of Minnesota.
A. K. TEISBERG, Secretary.
STATE OF MINNESOTA,
ST. PAUL, Sept. 16, 1891. ) To the Attorney General :
SIR:- In the matter of the complaint made to this commission, wherein Robert A. Smith and others were complainants against the Kettle River Railroad Company, the St. Paul & Duluth Railroad Company, the Eastern Railway Company of Minnesota, and the Great Northern Railway Compány were defendants. We have the honor now to enclose to you a certified copy of the findings of fact therein as made by the commission, and of the order of the commission.
The commission hereby certifies to the Attorney General the fact, that up to the present date the Kettle River Railroad Company has neglected or refused within the time specified in the order, to desist from the violation of law in said order specified; and this report and certiticate are forwarded to you for redress and punishment in accordance with the statutes of the state of Minnesota.
In this connection the commission calls your attention to Chap. 76, Sec. 11, General Statutes of 1878; and wbile expressing its preference for a proceeding under this statute, we cheerfully leave to your judgment and discretion to determine the method and manner of coin pelling the Kettle River Railroad Company to resume the lawful business which as a corporation it owes to the public; or in default thereof that it be subject to such penalties as are provided by law. Very truly yours,
A. K. TEISBERG,
STATE OF MINNESOTA,
ST. PAUL, Sept. 24th, 1891.1 Hon. Railroad and Warehouse Commission, St. Paul. Minn.
GENTLEMEN: The communication of your honorable body of date September 16th, in re The Kettle River Railroad Company, is received, and the matter will receive consideration at the earliest possible moment. As at present advised, I incline to your suggestion that the proceedings should be brought under section 11, of chapter 76, of the general statutes of 1878. Should further investigation suggest the advisability of proceedings under a different one, I will confer with your hononable body, I am,
MOSES E. CLAPP, Attorney General.
J. S. BIXBY AND OTHERS, Bixby,
PETITION FOR REMOVAL OF SIDE TRACK FROM AURORA STATION
STATE OF MINNESOTA,
ST. PAUL, Sept. 16, 1891. In the matter of the request of certain citizens of the township of Aurora, in Steele county and adjacent territory, asking the commission to give its consent to the removal of the side track from Aurora station to a point called Bixby, about three miles south of Aurora, on the C. M. & St. P. Railway:
It having been made to appear to the commission that said railway company is willing to make such removal with the consent of the commission, and after a full hearing both at Bixby and at Aurora, after notice given, of all parties who desired to appear before the commission,
It is hereby resolved that the change suggested is a reasonable and expedient one in order to promote the security, convenience and accommodation of the public, and the commission consents to the change being made. It must be understood, however, that in giving this consent the commission does so without reservation or condition of any sort; and that it does not in any way bind itself to an observance of any terms or conditions which may have been agreed upon in relation thereto between the railway company and the petitioners.
A copy of this resolution to be forwarded under the seal of the commission to the petitioners and to the railway company. By the Commission.
A. K. TEISBERG, Secretary.
B. A. MANTOR AND OTHERS, Hubbard,
GREAT NORTHERN RAILWAY COMPANY. PETITION FOR SIDE TRACK THREE MILES SOUTH OF PARK
RAPIDS. Commission visited the point in question on Sept. 18th, 1891, looked over the situation, and upon their return had a conference with officials of the company and urged upon them the