¶0 1. Railroads--Industrial Switches--Farm as "Industry." Under section 33 of art. 9 of the Constitution of Oklahoma a farm may come within the term "other industry."
2. Same -- Business to Justify Switch -- Power of Corporation Commission. Under said section of the Constitution the Corporation Commission is not justified in issuing an order to require a railway company to maintain a switch for the benefit of any person, firm, or corporation, owning or operating any coal, lead, iron or zinc mine, or any sawmill, grain elevator or other industry, unless it appears from the showing made that the amount of business produced by such mine, sawmill, elevator or other industry is sufficient to justify the same.
3. Corporation Commission -- Orders--Presumption of Reasonableness. The prima facie presumption of the reasonableness, justness, and correctness of an order of the Corporation Commission, obtaining by reason of section 22, art. 9, of the Constitution, applies only to the facts found by the Commission, or established by evidence upon which the Commission failed to make a finding; and, where a fact material to the reasonableness, justness, and correctness of an order is lacking in the finding of facts made by the Commission, and is not supplied by the evidence, the presumption obtaining by reason of said section does not apply, and on review in this court such order cannot be sustained.
4. Railroads--Industrial Switch for Farm--Order--Sufficiency of Evidence. The evidence in this case examined, and held it fails to show that the amount of business which would be produced is sufficient to justify maintaining the switch.
5. Same--Temporary Switch -- Right of Railroad to Remove. When a person seeking to have a switch put in by a railway company for his benefit accepts the terms of a letter in writing that he will pay a certain amount of the expense incurred in installing such switch, under the terms of the letter, which clearly states that the switch is temporary and shall be removed in six months, no equity arises in his favor to compel the railway company to continue to maintain such switch after the expiration of the time for which it was installed, because of the expenditure of money made by such person.
MILLER, J.
¶1 A complaint was filed by Fred A. Chapman against the Chicago, Rock Island & Pacific Railway Company before the Corporation Commission asking that the railway company be required to install or replace a switch between Mannsville and Russett, Oklahoma. A hearing was had before the Corporation Commission, and it made an order requiring the railway company to replace the switch. The railway company appealed from the ruling of the Corporation Commission, and appears here as appellant. It assigns several specifications of error, which it will not be necessary to set out in full. The complaint and order read as follows:
¶2 "The complainant says:
Cause No. 3992.
"1. (State name, address and occupation) Fred A. Chapman.
"2. That the above named defendant is a common carrier in the state of Oklahoma, and that as such is subject to the laws of the state of Oklahoma relating to railway and transportation companies.
"3. (Grounds of Complaint) That said C., R. I. & P. Railway Company on or about the first day of July, without notice to affiant, undertook and started work of removing certain spur track known as Chapman Spur, between the towns of Mannsville and Russett, Oklahoma, on the Chapman farm; said switch or spur being about 340 feet in length and being used for shipping of cordwood and farm products; said spur and track having partly been constructed by this complainant, and complainant having paid said C., R. I. & P. Railway Company the sum of $ 350.00 for installing same at that location; that said spur at said location is necessary to the complainant and others in that vicinity for purpose of loading cordwood and other commodities of said vicinity.
"Wherefore the complainant prays that the aforesaid defendant be required to answer the charges herein and after due hearing and investigation an order be made commanding--and for such other and further order as the Commission may deem necessary and just.
"Dated at Oklahoma City this 2 day of July, 1920.
"Fred A. Chapman,
"Complainant.
"Cause No. 3992
Order No. 1816.
"On the 2nd day of July, 1920, complainant filed his complaint with this Commission, in which he alleges that the respondent railway company was removing and tearing away a certain spur track, known as Chapman Spur, located between the stations of Russett and Mannsville, Oklahoma, at mile post No. 95.
"That said spur was located and installed at said point in January, 1920. That complainant furnished men and teams and graded the roadbed for said spur, which required some 15 days' work with six or eight teams and several men, and that it paid the actual costs of laying said track: to wit, the sum of $ 350.00. That said spur was necessary and essential to petitioner and his renters and neighbors for leading out cordwood, alfalfa hay, sweet potatoes and other farm products of the vicinity.
"Respondent defends by alleging that said spur was located and installed under the terms of a written contract as an emergency, and was to remain only for a period of six months, at which time same was to be removed.
"At the hearing, on the 12th day of July, 1920, all parties being present and represented by counsel, the evidence submitted shows that the spur was installed by the company under the terms of a written contract for a period of six months. That complainant owns some four or five thousand acres of land at and near said spur; 1,500 acres of which is in cultivation. That he has cleared within the past year some 150 acres of timber land, and is now clearing and proposes to clear 1,600 acres more, the wood from which he proposes to ship out, loading same at said spur. That the shipment of wood has already amounted to some six or seven hundred cords with about two hundred cords now ready for shipment. That there was moved in and out of said spur of various farm products, some fifty cars annually.
"The testimony shows that the wood now being cleared from said lands would never reach a market other than over this spur, as cost of haulage by wagon over the roads to either Russett or Mannsville, is prohibitive. The evidence shows that it costs five dollars per cord to transport same by wagon to either railway station. The railway company's testimony was that said spur would interfere with operation of its trains in handling the shipments loaded at said spur, and that the handling of cars loaded at said spur would add to the expense as well as the hazard of the operation of its trains.
"From all the testimony at hand, the Commission finds that said spur was located and installed under the contract between the complainant and respondent, under the terms of which same was to be removed at the expiration of six months; but further finds that the locating and removing of an equipment of this nature, is not altogether a matter of private contract, and that if reasonable necessity exists for said spur remaining at such location, the company would have no authority to remove same without the approval of this Commission.
"That said spur is located at a point 2.4 miles from Mannsville station, and 3 miles from Russett station. That the dirt road from said spur, and the point from which the wood and farm products from said spur and neighborhood to either railway station, is in such shape and condition as to not permit of successful and economical use of hauling heavy loads. That the grade at the point where said spur is located is 0. That while the necessity for said spur is not so great from the standpoint of fuel supply as at the time of its installation, yet in all probability there will be demands for the wood during the coming winter. That the complainant paid the costs of laying and grading said spur, and in a manner complied with the requirements set forth by the provisions of section 33, article 9, of the Constitution of the state of Oklahoma. That there is sufficient demand and necessity for said spur to justify the railway company in allowing same to remain.
"It is therefore the order of the Commission, it being advised in the premises, that respondent, the Chicago, Rock Island & Pacfic Ry. Co., immediately re-install and re-build what is known as the Chapman Spur, located 2.4 miles from Mannsville and 3 miles from Russett, on the Ardmore branch of the C., R. I. & P. and the spur to remain in service until further ordered by this Commission.
"Done at Oklahoma City this 7 day of December, 1920.
(Seal) Corporation Commission of Oklahoma.
"Art. L. Walker, Chairman.
"Campbell Russell, Comm'r.
"Attest:
"P. E. Glenn, Act. Sec'y."
The evidence shows the switch was installed by the railway company upon the acceptance by Chapman of the terms of a letter, which is as follows:
"Subject:
"Tracks--MP 95-14 and 95-15--Fred A. Chapman.
"Haileyville, Okla., Dec. 5, 1919.
"File 376-A
"Mr. Fred A. Chapman,
"Ardmore, Oklahoma.
"Dear Sir.--
"We are authorized to construct the temporary spur between MP 95-14 and 95-15 or at about that location on our Ardmore branch to permit you to lead out the 1,200 to 1,500 cords of wood which you now have on the ground at or near that place, provided you deposit with us a certified check in the amount of $ 350.00, which is the amount we estimate it will cost for labor to construct this siding and remove it again after the loading had been completed.
"It is, of course, understood that if the expense should exceed that amount you will also pay the difference. On the other hand if all of this money is
...
