Chicago, I.&L. Ry. Co. v. Baugh
| Decision Date | 31 March 1911 |
| Docket Number | No. 21,649.,21,649. |
| Citation | 94 N.E. 571,175 Ind. 419 |
| Court | Indiana Supreme Court |
| Parties | CHICAGO, I. & L. RY. CO. v. BAUGH et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Tippecanoe County.
Condemnation proceedings by the Chicago, Indianapolis & Louisville Railway Company against Samuel Baugh and others. From the judgment, plaintiff appeals. Reversed, with directions.
E. C. Field, H. R. Kurrie, and John F. McHugh, for appellant. Edwin P. Hammond, Wm. V. & Allison E. Stuart, and Dan W. Simms, for appellees.
Appellant, a railroad company, filed its complaint in the Tippecanoe circuit court, alleging, among other things, that it had heretofore appropriated at the point where it seeks appropriation in this proceeding 60 feet in width, and that, with the appropriation here sought, the total width of the property appropriated by the plaintiff will be 6 rods, and desires to use the land described in the complaint east of and adjoining that heretofore acquired, and on which its main line is operated, as the location for its stock pens at said station of Raubs, and that it carries from said station of Raubs as a common carrier a great deal of live stock; that it is necessary for plaintiff to maintain at said station stock pens and other facilities to enable shippers to load and unload live stock at such station; that for many years it has occupied the land sought to be appropriated in the maintenance of stock pens and other facilities under a lease from the owner which has expired, and the lessors have notified it that the lease will not be renewed; that it is necessary for plaintiff to appropriate this land for such use, and that there is no other property at this place which plaintiff can appropriate; that the land is occupied by it in the discharge of its duties as a public carrier and has been so used for many years, and refers to sections 5195, 5236, 5325, 5326, and 929-940, Burns 1908, for its authority.
[1]To this complaint appellees as the alleged owners of the property filed various objections, denying the right of appropriation in appellant. It is admitted, however, by counsel for appellees that the real question in the case is whether appellant has the right by the exercise of the power of eminent domain to appropriate real estate outside its right of way heretofore taken for the sole purpose of locating and maintaining stock pens. The question is presented upon overruling a motion for a new trial upon an agreed statement of facts, and by assignment of error in sustaining the objections of appellees to the appointment of appraisers. Appellant owes a public duty to provide means for loading and unloading stock, and such provision is for the public benefit, and in discharge of a public duty, and the use is essentially a public one. Westport Stone Co. v. Thomas et al. (No. 21,305 at this term) 94 N. E. 406, and cases there cited. Nor is it a question as to how many persons make use of the facility, and, upon the same analogy, it is immaterial that other facilities exist a few miles away. It is not a question of degree of public utility which determines the character of the use, but of choice by the carrier in furnishing greater or better facilities for the public use, and is determined by the right of the public to use it without discrimination, and not by the extent to which it may be used, or by the fact that other equal facilities exist at more remote distances. Equal facilities are as much required at one place as at another. When a station is established, the duty to provide facilities and accept the transport freight is imperative. Burns 1908, § 5271; Chicago, etc., Co. v. Southern Ind. Co. (1906) 38 Ind. App. 234, 70 N. E. 843.
[2] Railroad companies are required to carry live stock, and as an incident to that duty and requirement to furnish facilities reasonably sufficient for loading and unloading. Prather v. Jeffersonville Co., 52 Ind. 16;Covington Stockyards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. 73;Kalamazoo Hack Co. v. Sootsma, 84 Mich. 194, 47 N. W. 667, 10 L. R. A. 819, 22 Am. St. Rep. 693;Owen v. Louisville, etc., Co., 87 Ky. 626, 9 S. W. 698;Oregon, etc., Co. v. Ilwaco R. R. Co. (C. C.) 51 Fed. 611;Indian River Co. v. East Coast Trans. Co., 28 Fla. 387, 10 South. 480, 29 Am. St. Rep. 258; Keith v. Ky. Cent. Co., 1 Interst. Com. Com'n R. 189; McCullough v. Wabash Ry. Co., 34 Mo. App. 23.
[3] In the absence of statutory provision, it must be apparent that the carrier is allowed some discretion as to where it will locate stations and the facilities necessary to be provided. Chicago, etc., Co. v. Southern Ry. Co., supra; Northern, etc., Co. v. Washington, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092;People v. New York, etc., Co., 104 N. Y. 58, 9 N. E. 856, 58 Am. Rep. 484;Florida, etc., Co. v. State, 31 Fla. 482, 13 South. 103, 20 L. R. A. 419, 34 Am. St. Rep. 30;State v. Kansas City, etc., Co., 51 La. Ann. 200, 25 South. 126;State v. Des Moines, etc., Co., 87 Iowa, 644, 54 N. W. 461;People v. Chicago, etc., Co., 130 Ill. 175, 22 N. E. 857;Mobile, etc., Co. v. People, 132 Ill. 559, 24 N. E. 643, 22 Am. St. Rep. 556;State v. New Orleans, etc., Co., 42 La. Ann. 138, 7 South. 226; Rea v. Railroad Co., 7 Interst. Com. Com'n R. 43. It is not seriously controverted by appellees that this is true, but they insist that there is no right of condemnation for such purposes, and that property can only be acquired for that purpose by donation or contract. This contention is based upon sections 5192, 5195, Burns 1908, and upon the further grounds that under section 5195, subds. 3, 4, 9, relied upon by appellant as conferring the power, the location of stock pens is a convenience, and not a necessity. Section 5192 and subd. 2 of section 5195, as we understand them, only enlarge the contracting power of railroads with respect to incidents of the business, and makes permissive the receipt of grants and donations of land and aid to be held and used exclusively for railway purposes. In Protzman v. Indianapolis Co. (1857) 9 Ind. 467, 68 Am. Dec. 650, it was held that a railway company as a common carrier had the implied power to acquire such facilities and accommodations for carrying on the business and the objects of the charter or franchise, as are the inseparable incidents of the operation of a railway, and the management of its business; that is, such as are necessary in its operation and the discharge of its public duties. Prather v. West. Union Co., 89 Ind. 501;Pittsburgh, etc., Co. v. Shaw (Pa.) 14 Atl. 323; West. U. Tel. Co. v. Marietta, etc., Co., 38 Ohio St. 24; West. U. Co. v. Rich, 19 Kan. 517, 27 Am. Rep. 159; London, etc., Co. v. Price & Son, 13 Am. & Eng. R. R. Cas. 128; Chicago, etc., Co. v. People, 56 Ill. 365, 8 Am. Rep. 690;Reagan v. St. Louis Co., 93 Mo. 348, 6 S. W. 371, 3 Am. St. Rep. 542;Cleveland, etc., Co. v. Bartram, 11 Ohio St. 457; Linton v. Sharpsburg Co., 1 Grant, Cas. (Pa.) 414; Slatten v. Des Moines Co., 29 Iowa, 148, 4Am. Rep. 205; State v. Com'rs, 23 N. J. Law, 510, 57 Am. Dec. 409;Vermont Cent. Ry. v. Burlington, 28 Vt. 193; Nashville, etc., Co. v. Cowardin, 11 Hump. (Tenn.) 348.
[4]Section 5195, Burns 1908, subd. 3, provides that railroad companies shall have power “to purchase and by voluntary grants and donations, receive and take, and by its officers, engineers, surveyors, and agents, enter upon, take possession of, hold and use, all such lands and real estate, and other property as may be necessary for the construction and maintenance of its railroad stations, depots, and others accommodations necessary to accomplish the objects for which the corporation is created.” Subdivision 9 confers the power “to erect and maintain all necessary and convenient buildings, stations, depots, fixtures, and machinery for the accommodation and use of their passengers, freight and business, and obtain and hold the lands necessary therefor.” Stock pens may not strictly be classified as buildings, stations, depots, or fixtures, though they may be strongly allied to the latter, but they are certainly accommodations in the handling and shipment of stock. What are we to understand by the phrase “accommodations necessary,” and who is to be the judge as to what are accommodations “necessary”? It is not a matter of doubt that in some causes courts and commissions thereto delegated have the power to compel the construction or furnishing of accommodations in the public interest, such as proper waiting rooms or stations, housings for the protection of property until delivered, to require the establishment of stations, and stopping places, runningtrains, and the like, upon the theory that, having undertaken the duties of carriers, they must be discharged with some regard to the public interest and public necessities. Where the Legislature has given authority to condemn for public use, the courts cannot inquire into the question of necessity. Vandalia Co. v. Indianapolis, etc., Co., 168 Ind. 144, 79 N. E. 1082;Richland, etc., v. Overmyer, 164 Ind. 382, 73 N. E. 811;Speck v. Kenoyer, 164 Ind. 431, 73 N. E. 896; Elliott on Railroads, 973. It has also been held that, where some width of right of way for a railway less than the width authorized to be taken by statute has been taken, the power is not exhausted to take the full statutory width. Smith v. Cleveland, etc., Co., 170 Ind. 382, 396, 81 N. E. 501;Peck v. Louisville Co., 101 Ind. 366, 371;Prather v. Jeffersonville, etc., Co., supra, 52 Ind. 16, 42;Chicago, etc., Co. v. Chicago, etc., Co., 211 Ill. 352, 360, 71 N. E. 1017.
[5][6]Indispensable necessity is not the test for determining whether the taking of property is necessary to erect and maintain stock pens as an incident to the loading and unloading of stock in the business of operating railroads under a statute authorizing the acquisition of real estate for “stations, depots, and other accommodations necessary to accomplish the objects for which the corporation is...
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