Nedved v. Chi., M. & St. P. Ry. Co.

Citation153 N.W. 886,36 S.D. 1
Decision Date24 July 1915
Docket NumberNo. 3713.,3713.
PartiesNEDVED et al. v. CHICAGO, M. & ST. P. RY. CO.
CourtSupreme Court of South Dakota

36 S.D. 1
153 N.W. 886

NEDVED et al.
v.
CHICAGO, M. & ST. P. RY. CO.

No. 3713.

Supreme Court of South Dakota.

July 24, 1915.


Appeal from Circuit Court, Brown County; Thos. L. Bouck, Judge.

Proceeding by Charles Nedved and others before the Railroad Commissioners to compel the Chicago, Milwaukee & St. Paul Railway Company to construct and maintain a side track. An order requiring defendant to construct a side track was affirmed by the circuit court, and from the order and the judgment defendant appeals. Order and judgment affirmed.

[153 N.W. 887]

William G. Porter and Ed. L. Grantham, both of Aberdeen, for appellant.

Joseph Janousek, of Yankton, for respondent.


P. W. Dougherty, of Pierre, and Oliver E. Sweet, of Rapid City, for Railroad Commissioners.

McCOY, P. J.

Under the provisions of the statute, section 534, Civil Code, plaintiffs, 95 in number, instituted this proceeding before the railroad commissioners for the construction and maintenance of a side track between the stations of Tabor and Yankton on defendant's lines of railway in Yankton county. The matter was heard before the railroad commissioners and an order issued requiring the construction of such side track. From said order an appeal was taken to the circuit court. This appeal is taken from the order and judgment of the circuit court affirming the action of the railroad commissioners.

Section 534, Civil Code, provides that where stations are more than twelve miles apart railroad companies, when required so to do by the board of railroad commissioners, shall construct and maintain a side track for the use of shippers between such stations.

The following plat shows the relative location of defendant's lines and stations thereon and approximate distance so far as material to the issues presented:


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[1] The first contention of appellant is that the court erred in finding the distance between Tabor and Utica, via Napa Junction, to be 14.1 miles, when as a matter of fact in a direct line Tabor and Utica are not to exceed 8.5 miles apart. We are of the view that under this statute the “distance between stations” means the distance apart along the line of the railway track upon which such stations are situated. It appears that Utica and Tabor, via Napa Junction, are 14.1 miles apart. If Napa Junction were 40 miles east of Tabor with Utica only 8.5 miles distant in a direct line across country, would it be a reasonable proposition to conclude that no sidings could be required to be constructed between them...

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