discrimination, to enable him to handle, store and ship his grain. Again, a man of limited means, having no elevator, may desire to engage in the grain business, but to do so he must have elevator facilities on equal terms with other dealers. Now to secure the building and operating of public elevators, to enable the farmer, the dealer, and the public generally to secure the necessary facilities for the purchase, sale, shipment or storage of grain, and to prevent abuses and monopoly in the grain business, is the purpose of this statute. The use for which it authorizes the easement to be acquired is, therefore, public. The petition and judgment in this case follow the letter of the statute, and the easement acquired by the petitioner by these proceedings is the right to operate a public elevator on the right of way of the appellant, and the petitioner's testimony on the trial as to what he intended to use the elevator for is not material. His intentions in the premises cannot enlarge the easement, or affect the decision of the question whether the statute authorizes the taking of land for other than a public purpose at the option of the party seeking to condemn a site for an elevator.

It is further claimed that this statute is class legislation, and denies to railroad companies the equal protection of the laws, for the reason that it authorizes the condemnation of a site for warehouses or elevators on their right of way, but does not subject the land of a private owner to a like burden. It is difficult to see how any question of class or partial legislation can arise under this statute, for it is not the railway companies which are discriminated against but the party seeking to condemn a site for an elevator is limited in his selection. The selected site must be at or contiguous to the railway station or siding and between the outside switches of the yard. This limitation is not a favor to the party seeking a site, or a discrimination against the railway, but it is a limitation imposed for the benefit of the public, and is intended to secure the location of public grain elevators at such points that they can be readily connected by side tracks with the main track of the railway, so as to furnish convenient facilities to the public for economically handling and shipping the products of the state. The statute applies to all railway companies and to all land similarly situated, and is not class or

partial legislation. The legislature in its wisdom, has by this statute designated the property which it deemed appropriate for the maintaining of public elevators thereon, and has accordingly authorized its condemnation. The necessity or expediency of thus appropriating this particular property, and none other, is not a subject of judicial cognizance.

The appellant further claims that the statute is invalid, because the party seeking to condemn an elevator site is given the exclusive right of selection within the limitations of the statute, and the railway company is not given any right to submit to the court the question whether the taking of the particular piece of ground sought is necessary for a public use. We have no doubt that the party seeking to acquire a site under this statute must act in good faith, and, if it was manifest to the court from his selection that he was acting in bad faith, and seeking to make use of the statute simply to oppress or blackmail the railway company by unnecessarily selecting as a site for his elevator the ground on which its station buildings were located, the court would have the power to prevent any fraudulent use of the statute. But, this aside, it is a ques tion for the legislature whether property already appropriated to a given public use shall be taken for another public use. "There is nothing better settled than that the power of eminent domain being an incident of sovereignty, the time, manner and occasion of its exercise are wholly in the control of the legislature, except as restrained by the constitution." If the use is public, the necessity or expediency of appropriating any particular property is not for the courts. Fairchild v. City of St. Paul, 46 Minn. 540 (49 N. W. Rep. 325). The statute in question is a valid exercise of legislative power.

Sec. 224. Defect of parties waived. It appears from the petition, answer and evidence in this case that the appellant is the lessee of the St. Paul, Minneapolis & Manitoba Railway Co. for the term of 99 years, of the land and right of way here in question. The appellant now claims that there is a defect of parties, because the Manitoba Company may have, during the period of 20 years-the term of the easement sought to be acquired in this case-an interest in the subject-matter of the condemnation proceedings, and

should have been made a party thereto. No such interest appears on the face of the petition, or is alleged in the answer. The appellant cannot now raise the objection of a defect of parties, for such defect, if any there be, can only be taken advantage of by demurrer or answer; otherwise it is waived. Baldwin v. Canfield, 23 Minn. 43 (1 N. W. Rep. 261, 276, 585).

Sec. 225.

Condemnation in order to continue a use after expiration of license. The trial court found as a fact that on or about October 1, 1891, the petitioner, by the permission and license of the appellant, erected upon the tract of land so sought to be condemned by this proceeding a complete grain elevator of about 40,000 bushels capacity, and has at all times maintained and operated such elevator thereon, and for the right, privilege and easement of continuing to so maintain the same on such tract of land the condemnation proceedings herein were instituted. The court further found that the petitioner did not intend to erect any other elevator on the land occupied by his elevator already in existence, and that the license under which the petitioner erected his elevator terminated July 15, 1894. It further appeared from the undisputed evidence that the elevator so operated by the petitioner was licensed as a public elevator under the laws of this state, and that he is still in the possession of the elevator and land on which it stands, but that prior to the filing of his petition herein he was notified by the appellant to remove his elevator from such tract within six months after such notice. The appellant claims substantially that the statute relates only to the acquisition of a right to erect, and not of a right to continue to operate, an elevator which had been erected and was on the land at the time of the filing of the petition; hence under the undisputed evidence and the finding of fact the petitioner could not maintain these proceedings. The statute must receive a reasonable construction, and a mere statement of the facts in this case is all that is necessary to show that the construction claimed by the defendant is extremely technical, and without merit. It is undisputed that on June 7, 1894, the petitioner owned the elevator in question, and whether he was in possession of the land under a verbal

license without conditions, except what the law would imply as to the removal of his elevator, or under a special lease containing special conditions as to such removal, as claimed by the appellant, he then had the right to remove it. But he then knew that he could not continue to operate the elevator unless he acquired the right to do so under the statute. Now, if he had torn the elevator down, or removed it off the right of way, and then filed his petition, and, when he had acquired the right to operate it on its former site, he had erected or removed it upon the site, his proceedings would have been literally in accordance with the statute. There is no warrant for the assumption that, if the petitioner could not have acquired the right to operate the elevator upon the location sought, he would not have removed his elevator before his right to the possession of the site ceased, or before he surrendered possession thereof. When the petition was filed, and the order of the court made thereon and served on the appellant, it had no right to or claim on the elevator, and the petitioner's right to remove it was still absolute. It is manifest that, except for the right given the petitioner to acquire a site for his elevator, he would remove it while he had a right to do so, and not forfeit it to the appellant; hence there is no basis for the claim that the appellant would secure and operate the elevator when the petitioner was forced to vacate the site, and that the public gains nothing by the condemnation proceedings. The petitioner's condemnation proceedings were not an attempt to condemn property already in use for the very purpose for which condemnation was sought, for such use would cease, except for the condemnation proceedings; and the case of Minneapolis Western Ry. Co. v. Minneapolis & St. L. Ry. Co., 61 Minn. 502 (63 N. W. Rep. 1035), has no application to this case. The object sought by the petitioner was to acquire the right to continue to operate his elevator on its then site, and his petition and proceedings were within the spirit, and in form with the letter of the statute, and his rights cannot be defeated because the evidence shows that the right he seeks is to continue the use of his elevator, instead of a right to pull it down and put it up again. The law does not require a party to do a useless and foolish thing. He was not bound to take down or remove his elevator, and, when he had secured

the easement sought, erect it on the location acquired. The trial court did not find that the petitioner erected the elevator under the special permit or lease containing conditions as to the removal of the buildings, as claimed by appellant, but that he erected the elevator by the permission and license of the appellant. The sufficiency of the evidence to support this particular finding is not raised by any proper assignment of

error.

Sec. 226. Sufficiency of evidence on which to assess damages. The last assignment of error urged by appellant in its brief is that no competent evidence was introduced to enable the jury to assess the damages; that is, either the annual or the gross rental value of the premises. This claim is not sustained by the record. The appellant offered no evidence on the question, and by no assignment of error is the sufficiency of damages awarded questioned. Upon this question the petitioner testified that he had experience in the renting of sites for elevators from railroad companies, and knew the rental value of the site in question, and, without any objection being made as to his competency, he testified as to the annual rental value, and the gross rental value of the site for 20 years. Other witnesses gave similiar testimony, but their competency was challenged by proper objections and exceptions; but the rulings of the court in receiving the evidence are not assigned as error. Each of the witnesses, including the petitioner, stated on cross-examination, in effect, that his opinion was based on what the railroad companies were accustomed to charge as rental for similar sites, and that one of the matters taken into consideration by the companies in fixing the annual rent was the benefits they would secure from the business of the elevator. We are of the opinion that the value of this evidence was for the jury, and that it sustains the award of damages. Judgment affirmed.

Mitchell, J., absent, took no part.

CANTY, J.

I concur in the foregoing opinion, but my reason for holding that the statute is not class legislation, and therefore unconstitutional, because it authorizes only the condemnation