Butte, A. & P. Ry. Co. v. Montana U. Ry. Co.
| Decision Date | 29 July 1895 |
| Docket Number | 519. |
| Citation | 41 P. 232,16 Mont. 504 |
| Parties | BUTTE, A. & P. RY. CO. v. MONTANA U. RY. CO. et al. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; J. J. McHatton Judge.
Action by the Butte, Anaconda & Pacific Railway Company against the Montana Union Railway Company and others to condemn certain lands, and for leave to cross defendants' roads. From a judgment rendered in favor of plaintiff, defendants appeal. Judgment modified.
Where a spur track of a railroad is on the proposed line of another road, and at the point of crossing the grade of the new road is higher than that of the spur, it is proper to order that the company raise the grade of the spur so as to make a feasible crossing, and leave the spur in a reasonable condition for use.
The plaintiff is a railroad corporation, duly incorporated under the laws of Montana. The defendant the Montana Union Railway Company is also incorporated under the laws of Montana. The other defendants are organized under the laws of other states. The plaintiff alleges that it is authorized by its charter to construct, maintain, and operate a line of railway from the city of Butte, Silver Bow county, Mont., beginning at a point near the terminus or depot of the Montana Central or Great Northern Railway, at or near the city of Butte aforesaid, and running and extending thence in a general westerly direction, by way of the towns of Rocker and Silver Bow, in said county of Silver Bow, and through Silver Bow canon, to a point near Gregson's Springs, and thence in a general northwesterly direction, skirting the westerly foothills of Deer Lodge valley, to the city of Anaconda, with such connections, branches, and spurs to mines and smelting works and other industries in said counties as may be deemed necessary or proper. That plaintiff is engaged in the construction of said main line of railway between the said cities of Butte and Anaconda, and also the branch and connection intended to connect on the east with the Mountain View spur and Montana Central Railway, and by means of that railway with the main line of plaintiff, at or near the Great Northern depot aforesaid, and also to connect directly with the main line of plaintiff at a point west of Butte City, to wit, at or near Rocker, and to extend to the various mines mills, and other industries situate along said branch,--all of said branch and the points above mentioned being in Silver Bow county, Mont. That the public interest requires the construction of said railway, and the branch thereof above described, and that the lands proposed by plaintiff to be taken and condemned for the use of said railway are required and necessary for the construction and operation thereof, and for a right of way, tracks, side tracks, and general railway uses of plaintiff. That it is necessary to the construction and operation of said railway that the plaintiff should take use, and enjoy, for the purpose of a right of way for its branch railway above described, certain portions of land in Silver Bow county, and all being within the limits of the right of way claimed by the defendants herein for a railroad now being operated by the defendant the Montana Union Railway Company. Then follows in the complaint an accurate description of the lands which the plaintiff wishes to use for right of way purposes. The description embraces a strip of land across the Nipper claim, and within the defendants' right of way; also a strip of land in the Last Chance addition to the city of Butte, and a portion of certain blocks of the Belle of Butte addition to the city of Butte; also a strip of land across the Clear Grit mining claim; also a strip of land across the Banker mining claim also a strip of land across the Autocrat claim; also a strip across the Oro Butte claim; also strips across the Pacific claim, the Poulin claim, the Humboldt claim, the Buffalo claim, the Little Mina claim, the Blackfoot claim, the Alexander claim, the Gambler claim, the Wake Up Jim claim and the Emma Abbott claim. Plaintiff, alleges that the defendants claim or own an interest or right to the property above described, and more particularly set forth by metes and bounds in plaintiff's complaint, and that the Montana Union Railway Company has no interest in said premises, except an easement for a right of way for railway purposes, and that although the property is within the limits of the right of way claimed by the Montana Union Railway Company, it has never been used by defendants or any of them for any purpose, and is not necessary for their use for railway purposes, or for any public use, and that the use for which plaintiff seeks to condemn said property, and to which said property is to be applied by plaintiff, is a more necessary public use than any use to which defendants could put said lands or any part thereof. The plaintiff further alleges that, in the construction of its said branch line, it is necessary that said branch line should cross and intersect the Montana Union Railway and certain spurs thereof. There are about 12 of these crossings,--one at the Modoc mine; one over the spur leading to the Anaconda ore house, marked B on the map; another crossing over the spur leading to the Anaconda ore house, marked C on the map; a crossing over the spur leading to the Gagnon mining claim, marked D; also a crossing over the Haggin spur, marked E; also a crossing over the Buffalo spur, marked F; also a crossing over the spur leading to the Mountain Consolidated mine, marked G; also a crossing over the spur leading to the Green Mountain and Wake Up Jim ore houses, marked H; also a crossing over the spur leading to the ore house of the High Ore mine, marked I; also a crossing over the Haggin spur, leading to the High Ore Mine ore house, marked J; also a crossing over the spur leading from the Haggin spur to the boiler house of the Anaconda mine, marked K; also a crossing over the Haggin spur, near the timber shop at the Anaconda mine, marked L. It is alleged by plaintiff that these various crossings and intersections proposed, are to be made in the manner most compatible with the greatest public benefit and the least private injury to the defendants, and that, as proposed, the crossings will not in any way interfere with the use, operation, or enjoyment by the defendants of their said railway lines or the spurs thereof. Plaintiff further alleges that it has been unable to agree with the defendants as to the amount of compensation to be paid for the taking of the above-described premises and the construction of the crossings, and that the interest in the premises sought to be condemned for plaintiff's use is only an easement for a right of way for the construction, maintenance, and operation of its railway. The plaintiff's prayer is for a judgment that the use for which plaintiff seeks to appropriate the premises is a public use; that the public interests require the construction of plaintiff's railway, and that the lands and the crossings proposed to be made are necessary for the purpose of said railway and said branch railway, and that the plaintiff has a right to appropriate the premises and make the crossings; that the court ascertain the interest of said defendants in the premises described and sought to be condemned, and that an order be made appointing three competent and disinterested persons as commissioners to assess the damages by reason of the appropriation of the said property, and that on the coming in of the report of the commissioners, the court make such order in regard to the possession of said property sought to be condemned as may be proper; and that, as to the crossings, the court adjudge, regulate, and determine the place and manner of making the same.
The material points of defendants' answer are a denial that the public necessity requires the construction of plaintiff's railway and the branch thereof, as set forth or that the lands therein proposed to be taken and condemned are required or necessary for the construction or operation of plaintiff's railway, or for any use connected therewith. Defendants deny that it is necessary to the construction or operation of plaintiff's railway that it should take for right of way purposes any portions of the lands within the limits of the right of way claimed by the defendants, and as set forth in plaintiff's complaint; deny that the property, or any part thereof sought to be condemned, has never been used or that the same is not necessary for railway uses for defendants; deny that the use for which plaintiff seeks to condemn the property is a more necessary public use than any use to which defendants could put the lands or any part thereof. They deny the necessity of the crossings or intersections pleaded by the plaintiff, and deny that such crossings are located in a manner most compatible with the greatest public benefit or least private injury to the defendants; deny that the proposed crossings will not interfere with the enjoyment of defendants' railway privileges. The defendants then allege that the Oregon Short Line & Utah Northern Railway Company is the owner of those various pieces of ground described in the complaint as parts of the various mining claims heretofore referred to, and aver that all of said ground was obtained by grant, or by the exercise of the right of eminent domain, for the purpose of the construction of a railroad over the same, and for the operation of the Montana Union Railway, and that all of said ground became and was, and now is, absolutely necessary to the said defendants for the operation of said railway, and has always been used for such purposes by defendants, and defendants expect to continue to use the same, and that the same is absolutely necessary to defendants for...
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