Bedford Quarries Company v. Chicago, Indianapolis And Louisville Railway Company

• Citation: 94 N.E. 326,175 Ind. 303
• Decision Date: 07 March 1911
• Docket Number: 21,605
• Parties: Bedford Quarries Company et al. v. Chicago, Indianapolis and Louisville Railway Company
• Court: Supreme Court of Indiana

94 N.E. 326

175 Ind. 303

Bedford Quarries Company et al. v. Chicago, Indianapolis and Louisville Railway Company

No. 21,605

Supreme Court of Indiana

March 7, 1911

From Lawrence Circuit Court; James B. Wilson, Judge.

Action by the Chicago, Indianapolis and Louisville Railway Company against the Bedford Quarries Company and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

W. T Abbott and Brooks & Brooks, for appellants.

E. C Field and H. R. Kurrie, for appellee.

OPINION

Monks, J.

This proceeding was brought by appellee, a railroad company organized under the laws of this State, against the Bedford Quarries Company, the owner of certain real estate, and the Cleveland Trust Company, trustee, as the owner and holder of a mortgage on said real estate, to appropriate a right of way across said real estate, for the construction of a side-track thereon from appellee's main line to lands containing building stone.

The proceeding was brought under an "act concerning proceedings in the exercise of eminent domain," approved February 27, 1905 (Acts 1905 p. 59) and an amendment thereto (Acts 1907 p. 306, §§ 929-940 Burns 1908).

Appellants each filed sixteen objections to said proceeding. The court heard the evidence, overruled each of said objections, and appointed appraisers under said act of 1905. From said interlocutory order appointing appraisers, appellants appealed to this court under § 933, supra.

It appears from the record that there is a side-track connecting with appellee's main line extending west for a distance of about a mile into the property of a stone-quarry company. This side-track is being used by appellee in hauling all kinds of freight to and from the stone-quarry, at which it ends, as well as other freight which is offered to it from time to time. From thirty to forty carloads of stone are handled each day during the quarrying season. It also handles inbound shipments of wood and stone, also coal and machinery, consigned to the Perry, Mathews, Buskirk Stone Company, the Ohio and Western Lime Company and the Furst-Kerber Stone Company. Appellee handles as a common carrier freight offered by any one on said side-track. The proposed side-track is to connect with the one mentioned at a point about thirty-four hundred feet from the main track, and run thence in a northerly direction about six thousand feet over the lands of the Bedford Quarries Company, appellant, and the lands of other persons to the lands owned by the Furst-Kerber Stone Company.

Appellants insist that this proceeding cannot be maintained, because it is an attempt by a railroad company to appropriate lands for a private purpose, and not for a public use.

Railroad companies organized under the laws of this State are authorized to take, by condemnation proceedings, lands necessary for their tracks, side-tracks, switches, "depots, and other accommodations necessary to accomplish the objects for which the corporation is created." §§ 5192, 5195, 5236 Burns 1908, §§ 3900, 3903, 3907 R. S. 1881; §§ 929-940, supra.

It was said by the court in Southern Pine Fibre Co. v. North Augusta Land Co. (1892), 50 F. 26, 27: "The term 'side-track' has a well-known signification. It means connection with some railroad affording communication with market."

There is a sharp conflict of authority as to whether the use of land for switches, spurs and side-tracks to private property constitutes a public use for which rights of way may be condemned. There are numerous cases, however, that hold that such tracks may be built for the purpose of reaching a coal mine or a manufacturing establishment, as it is a public enterprise for which the power of eminent domain may be used, provided the public has the right to use such tracks. "The right of the public to use such tracks makes the use thereof public. Such tracks seem a proper mode of making the facilities of the railroad available and open to all who are so situated as to be able to use them upon equal terms, and there is no sound reason why they should not be regarded as a public use." Wolfard v. Fisher (1906), 48 Ore. 479, 84 P. 850, 87 P. 530, 7 L. R. A. (N. S.) 991, 997, and cases cited; Kettle River R. Co. v. Eastern R. Co. (1889), 41 Minn. 461, 43 N.W. 469, 6 L. R. A. 111; Phillips v. Watson (1884), 63 Iowa 28, 18 N.W. 659; Morrison v. Thistle Coal Co. (1903), 119 Iowa 705, 94 N.W. 507; DeCamp v. Hibernia, etc., R. Co. (1885), 47 N.J.L. 43; Hibernia, etc., R. Co. v. DeCamp (1885), 47 N.J.L. 518, 4 A. 318, 54 Am. Rep. 197; Hays v. Risher (1858), 32 Pa. 169; Hairston v. Danville, etc., R. Co. (1908), 208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637; St. Louis, etc., R. Co. v. Petty (1893), 57 Ark. 359, 21 S.W. 884, 20 L. R. A. 440, and note; Roberts v. Williams (1854), 15 Ark. 43, 49; Truesdale v. Peoria Grape Sugar Co. (1882), 101 Ill. 561; Mills v. Parlin (1883), 106 Ill. 60; South Chicago R. Co. v. Dix (1883), 109 Ill. 237, 17 Am. and Eng. R. Cas. 157; Chicago, etc., Canal Co. v. Garrity (1885), 115 Ill. 155, 3 N.E. 448; McGann v. People, ex rel. (1902), 194 Ill. 526, 62 N.E. 941; People, ex rel., v. Blocki (1903), 203 Ill. 363, 67 N.E. 809; Madera R. Co. v. Raymond Granite Co. (1906), 3 Cal.App. 668, 87 P. 27; Hurd v. Atchison, etc., R. Co. (1906), 73 Kan. 83, 84 P. 553; Kansas City, etc., R. Co. v. Louisiana, etc., R. Co. (1905), 116 La. 178, 40 So. 627, 5 L. R. A. (N. S.) 512, 7 Am and Eng. Ann. Cas. 831; Farnsworth v. Lime Rock R. Co. (1891), 83 Me. 440, 22 A. 373; Ulmer v. Lime Rock R. Co. (1904), 98 Me. 579, 57 A. 1001, 66 L. R. A. 387; Toledo, etc., R. Co. v. East Saginaw, etc., R. Co. (1888), 72 Mich. 206, 40 N.W. 436; Minneapolis, etc., R. Co. v. Nicolin (1899), 76 Minn. 302, 79 N.W. 304; Liedel v. Northern Pac. R. Co. (1903), 89 Minn. 284, 94 N.W. 877; Roby v. State, ex rel. (1906), 76 Neb. 450, 107 N.W. 766; Clarke v. Blackmar (1871), 47 N.Y. 150; Corporation Commission v. Seaboard, etc., Railway (1905), 140 N.C. 239, 52 S.E. 941; State, ex rel., v. Toledo R., etc., Co. (1903), 1 Ohio C. C. (N. S.) 513; Stockdale v. Rio Grande, etc., R. Co. (1904), 28 Utah 201, 77 P. 849; Zircle v. Southern R. Co. (1903), 102 Va. 17, 45 S.E. 802, 102 Am. St. 805, and note; State, ex rel., v. Superior Court (1906), 42 Wash. 675, 85 P. 669; Chicago, etc., R. Co. v. Morehouse (1901), 112 Wis. 1, 87 N.W. 849, 56 L. R. A. 240, 88 Am. St. 918, and note; Caretta R. Co. v. Virginia-Pocahontas Coal Co. (1907), 62 W.Va. 185, 57 S.E. 401; Butte, etc., R. Co. v. Montana, etc., R. Co. (1895), 16 Mont. 504, 41 P. 232, 31 L. R. A. 298, 50 Am. St. 508; Rochester, etc., Iron Co. v. Berwind-White Coal, etc., Co. (1871), 24 Pa. Co. Ct. 104; Robbins v. Western, etc., R. Co. (1900), 31 Pitts. L. J. (O. S.) 181; State, ex rel., v. Toledo R., etc., Co. (1903), 24 Ohio C. C. 321, and cases cited; Mull v. Indianapolis, etc., Traction Co. (1907), 169 Ind. 214, 220, 81 N.E. 657; Sexauer v. Star Milling Co. (1910), 173 Ind. 342, 26 L. R. A. (N. S.) 609, 90 N.E. 474; Chicago, etc., R. Co. v. Southern Ind. R. Co. (1906), 38 Ind.App. 234, 70 N.E. 843; 1 Lewis, Eminent Domain (3d ed.) pp. 532, 534, and notes; Nichols, Eminent Domain § 221; 10 Am. and Eng. Ency. Law (2d ed.) 1078, 1079; 15 Cyc. 590, 591; 2 Elliott, Railroads (2d ed.) p. 515.

The character of the use of a railroad or railroad track does not depend on the amount of business done or the number of persons who may have occasion to use it, but on the right of the public to the benefit of it. If all the people have the right to use it, it is a public interest, although the number who require its use may be small. Chicago, etc., R. Co. v. Porter (1890), 43 Minn. 527, 46 N.W. 75; Decamp v. Hibernia, etc., R. Co., supra.

It has been held that there may be a grant to private individuals of the right to lay tracks in the streets connecting with the public railroad tracks previously laid and extended to the manufacturing establishments of those laying the tracks, but in such cases the tracks so laid become in legal contemplation, to all intents and effects, tracks of the railroad with which they are connected, open to the public use and subject to the public control, in all respects as other railway tracks are open to public use. South Chicago R. Co. v. Dix, supra.

It is said in 2 Wood, Railroads (2d ed.) p. 828: "To deny a petition of a railway company for the condemnation of land for a side-track, it should appear that the object thereby sought is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road." In re Boston, etc., R. Co. (1873), 53 N.Y. 574; New York, etc., R. Co. v. Metropolitan, etc., Co. (1875), 63 N.Y. 326; Chicago, etc., R. Co. v. Town of Lake (1874), 71 Ill. 333; Smith v. Chicago, etc., R. Co. (1883), 105 Ill. 511; Cleveland, etc., R. Co. v. Speer (1867), 56 Pa. 325, 94 Am. Dec. 84; In re New York Cent. R. Co. (1879), 77 N.Y. 248; South Chicago R. Co. v. Dix (1883), 109 Ill. 237.

The running of a side-track by a railroad company to a private manufacturing establishment to connect the business of such establishment with the main line of the railroad is a public use for which land may be appropriated. "These establishments [manufacturing and mining] are very numerous especially in Pennsylvania, along and near lines of railroad. They serve to develop the resources of the state, they give employment to vast numbers of citizens and constitute a most important element in the general wealth and prosperity of the community. Convenience and consequent cheapness of transportation are in most cases essential, and in many vital to their maintenance. Moreover, considerable portions of the general public are directly interested in the traffic which goes to them, and in that which comes from...