Chi. & N. W. Ry. Co. v. Morehouse

• Decision Date: 05 November 1901
• Citation: 87 N.W. 849,112 Wis. 1
• Parties: CHICAGO & N. W. RY. CO. v. MOREHOUSE ET AL.
• Court: Wisconsin Supreme Court

112 Wis. 1

87 N.W. 849

CHICAGO & N. W. RY. CO.

v.MOREHOUSE ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Appeal from circuit court, Washington county; James J. Dick, Judge.

Condemnation proceedings by the Chicago & Northwestern Railway Company against Cyrus E. Morehouse and others. From a judgment in favor of petitioner, respondents appeal. Affirmed.

Plaintiff filed a petition in the circuit court for said county, stating, in substance, that it is a railway corporation entitled to the benefit of the statutes of this state for the acquirement by such corporations of real estate necessary for their use, by the exercise of the power of eminent domain; and further stated all the facts required by law to entitle it to take certain real estate described and to have commissioners appointed to appraise the same and determine the compensation to be paid to the owners thereof, if the particular use to which the petitioner purposed devoting the land was public so that constitutional authority existed for the exercise of the power of eminent domain by the corporation to acquire it. The facts in regard to such particular use, as stated in the petition, are as follows: In the vicinity of Wallace Lake, a body of water distant about one mile and a quarter from petitioner's main line, are located important ice industries, and other like industries are in prospect. Great quantities of ice are annually taken from such lake and shipped to various points on petitioner's railroad. A spur track, reaching from petitioner's main line to the ice houses on the bank of the lake, is necessary to the maintenance of such industries, in order that the ice can be economically transferred from the bank of the lake and the ice houses there situate, to and over the main line of petitioner's railroad.

Two of the persons named in the petition as owners of or interested in a portion of the land therein described, answered, alleging that the proceedings were instituted and carried on at the request and expense and for the benefit of the Pike & North Lakes Ice Company, a private corporation; that the land was not necessary for the purpose of operating petitioner's road.

On the hearing evidence was produced to the following effect: The petitioner is a railway corporation as alleged. A large and important part of its business as a public carrier of freight is the transportation of ice from sources of supply to various points on the lines of its railway system. Its main line passes the vicinity of the place sought to be reached by the proposed spur track, within about one mile thereof. The usual way of handling ice from sources of supply, over railway systems, is by constructing spur tracks from the main lines to such sources at the expense, in the main, of the proprietors of the ice industries. In such cases the railway companies own the spur tracks and operate them as part of their systems and in the same manner. The petitioner owns several such spur tracks. The proposed spur track is to be some over one mile long. There is a station on the main line of the petitioner's railroad a little over a mile from the terminus of the proposed track, but it would be impossible to profitably conduct the ice industry to be served by such spur track other than by the use thereof. The general freight business of the petitioner in the vicinity of the ice industry, is accommodated at the railway station referred to. It is proposed to construct such spur track at the expense of the Pike & North Lakes Ice Company, except the expense of ties and rails and placing the same in position. The ice company has procured the right of way for the use of the petitioner, except that portion in controversy in this proceeding. It is customary, in operating such spur tracks, to receive and carry freight over the same from any person who may desire such service. Such tracks are usually constructed at the request, and in the main at the expense, of the owner of the particular industry established or to be established, and upon a guaranty or assurance of sufficient business to warrant maintaining and operating the track; but they are operated without discrimination as to all persons desiring service by them. Such is the inducement to the petitioner to enter upon the construction of the spur track in question, and its purpose. Such spur track will reach four lakes, but the immediate purpose of it is to reach two lakes as sources of supply of ice. The only concern to be immediately served by such spur track, as a shipper of ice from the source of ice supply, is the Pike & North Lakes Ice Company, it being the proprietor of an ice industry, established or in immediate prospect, that will need the use of such track. The track will be at the disposal, as part of the petitioner's system, of other proprietors of ice industries, should any such be established at the terminus of the track or other points that can be reached by it. There is no highway or other public way, at present, reaching to the vicinity of the proposed track. No one can reach such terminus without passing over private property. The only purpose of such spur track is to furnish the Pike & North Lakes Ice Company, and such others as may desire to use it, with facilities for transporting ice over the petitioner's railroad to consumers at points reached by such road.

The court found, among other things, that there were located and to be located important ice industries, intended to be reached by the proposed spur track to be constructed over the land described in the petition as therein alleged; that the real estate which the petitioner desired to take was necessary for the purpose of operating its road and constructing and operating the spur track; that the use to which petitioner purposed devoting the land was public, and that it had a right to acquire the same by exercising the power of eminent domain. Commissioners were appointed accordingly, to appraise the land and determine the compensation to which the owners thereof were entitled by reason of being deprived of the same against their will for the use of petitioner. The answering landowners appealed.

Timlin, Glicksman & Conway, for appellants.

Edward M. Hyzer, for respondent.

MARSHALL, J. (after stating the facts).

Section 1831a, Rev. St. 1898, provides that, “every railway company existing in whole or in part under any law of this state and operating a railway therein may build, maintain and operate branches and spur tracks from its road or any branch thereof to and upon the grounds of any mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock or other industry or enterprise * * *; and may acquire by purchase or condemnation in the manner provided in this chapter for the acquisition of real estate for railway purposes other than for its main track, all necessary roadways and rights of way for such branches, spur tracks,” etc. Respondent, claiming the benefit of such statute, instituted the proceeding here involved. There is no question but that he was and is entitled to such benefit if the establishment and operation of a spur track to an ice industry, for the transportation of ice from such industry to consumers thereof, are within the statute, and that is a public use within the meaning of the constitutional limitation upon the power of the state to take private property therefor. There is no controversy but that respondent satisfies all the requirements of a grantee of the right to exercise the power of eminent domain under the statute, and that the gathering, storing and shipping of ice satisfy the calls of the statute for an industry to be reached by a spur track, and that the law contemplates only branch tracks leading off from main railway tracks, such branch tracks to be constructed and operated as a part of an entire railway system for the transportation of freight to and from particular points reached thereby. Appellants' counsel contend, in effect, that if the statute, by its terms, authorizes the taking of private property for right of way for a spur track to a particular industry, for the sole use of the proprietors thereof and of the railway corporation, it is unconstitutional, and that such was the end sought by respondent. On the case made by the findings of fact upon which the decision appealed from rests, we do not need to discuss that proposition. We apprehend that if the facts underlying it were understood to be as stated in the hypothesis, circumstances would not have arisen rendering this appeal necessary or possible. In any event, if the judgment under such circumstances were against appellants, they would have, in support of a reversal, abundance of authority. The trial court concluded from the evidence that the end respondent had in view in seeking to acquire the real estate in controversy was to construct a spur track to the seat of an important ice industry for the purpose of facilitating the transportation of ice therefrom, and from any other such industry that might be established within reach of the proposed track, to various points in various states; that in the operation of the existing ice industry great quantities of ice would be handled from the source of supply to consumers reached by petitioner's railway system; that railway facilities, such as the proposed spur track was designed to furnish, were necessary to the successful operation of such an industry, and to the convenience of the petitioner in the public business of furnishing shipping facilities for the handling of ice;...