Chicago, Indianapolis And Louisville Railway Company v. Baugh
| Decision Date | 31 March 1911 |
| Docket Number | 21,649 |
| Citation | 94 N.E. 571,175 Ind. 419 |
| Parties | Chicago, Indianapolis and Louisville Railway Company v. Baugh et al |
| Court | Indiana Supreme Court |
From Tippecanoe Circuit Court; Richard P. DeHart, Judge.
Action by the Chicago, Indianapolis and Louisville Railway Company against Samuel L. Baugh and others. From a judgment for defendants, plaintiff appeals.
Reversed.
E. C Field, H. R. Kurrie and John F. McHugh, for appellant.
Stuart Hammond & Simms, for appellees.
Appellant filed its complaint in the Tippecanoe Circuit Court alleging, among other things, that it has heretofore appropriated, at the point where it seeks appropriation in this proceeding, a strip of land sixty feet in width, and that with the appropriation here sought, the total width of the property appropriated by plaintiff will be six rods; that it 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; 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 said company 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. The complaint refers to §§ 929-940, 5195, 5236 Burns 1908, Acts 1905 p. 59, §§ 1-9, 11, 12, Acts 1907 p. 306, §§ 3903, 3907 R. S. 1881, as authority.
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 an 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 (1911), ante, 319, and cases cited.
It is not a question of how many persons use the facilities; 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 that 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 and transport freight is imperative. § 5271 Burns 1908, § 3925 R. S. 1881; Chicago, etc., R. Co. v. Southern Ind. R. Co. (1906), 38 Ind.App. 234, 70 N.E. 843.
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, etc., R. Co. (1875), 52 Ind. 16; Covington Stock Yards Co. v. Keith (1891), 139 U.S. 128, 11 S.Ct. 461, 35 L.Ed. 73; Kalamazoo, etc., Bus Co. v. Sootsma (1890), 84 Mich. 194, 47 N.W. 667, 10 L. R. A. 819, 22 Am. St. 693; Owen & McKinney v. Louisville, etc., R. Co. (1888), 87 Ky. 626, 9 S.W. 698; Oregon, etc., R. Co. v. Ilwaco R., etc., Co. (1892), 51 F. 611; Indian River Steam Boat Co. v. East Coast Trans. Co. (1891), 28 Fla. 387, 10 So. 480, 29 Am. St. 258; Keith v. Kentucky Cent. R. Co. (1887), 1 Inters. Com. Rep. 189; McCullough v. Wabash, etc., R. Co. (1889), 34 Mo.App. 23.
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., R. Co. v. Southern Ind. R. Co., supra; Northern Pac. R. Co. v. Washington Territory (1892), 142 U.S. 492, 12 S.Ct. 283, 35 L.Ed. 1092; People v. New York, etc., R. Co. (1887), 104 N.Y. 58, 9 N.E. 856, 58 Am. Rep. 484; Florida, etc., R. Co. v. State, ex rel. (1893), 31 Fla. 482, 13 So. 103, 20 L. R. A. 419, 34 Am. St. 30; State, ex rel., v. Kansas City, etc., R. Co. (1899), 51 La. Ann. 200, 25 So. 126; State v. Des Moines, etc., R. Co. (1893), 87 Iowa 644, 54 N.W. 461; People, ex rel., v. Chicago, etc., R. Co. (1889), 130 Ill. 175, 22 N.E. 857; Mobile, etc., R. Co. v. People (1890), 132 Ill. 559, 24 N.E. 643, 22 Am. St. 556; State, ex rel., v. New Orleans, etc., R. Co. (1890), 42 La. Ann. 138, 7 So. 226; Rea v. Mobile, etc., R. Co. (1897), 7 Inters. Com. Rep. 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 be acquired for that purpose only by donation or contract. This contention is based upon §§ 5192, 5195 Burns 1908, §§ 3900, 3903 R. S. 1881 and upon the further ground that under subdivisions three, four and nine of § 5195, supra, relied upon by appellant as conferring the power, the location of stock pens is a convenience and not a necessity. Section 5192, supra, and subdivision two of § 5195, supra, 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 the case of Protzman v. Indianapolis, etc., R. 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. Western Union Tel. Co. (1883), 89 Ind. 501; Pittsburgh, etc., R. Co. v. Shaw (1888), 36 Am. and Eng. R. Cas. 453; Marietta, etc., Co. v. Western Union Tel. Co. (1882), 38 Ohio St. 24; Western Union Tel. Co. v. Rich (1878), 19 Kan. 517, 27 Am. Rep. 159; London, etc., R. Co. v. Price & Son (1883), 13 Am. and Eng. R. Cas. 128; Chicago, etc., R. Co. v. People, ex rel. (1870), 56 Ill. 365, 8 Am. Rep. 690; Reagan v. St. Louis, etc., R. Co. (1887), 93 Mo. 348, 6 S.W. 371, 3 Am. St. 542; Cleveland, etc., R. Co. v. Bartram (1860), 11 Ohio St. 457; Linton v. Sharpsburg Bridge Co. (1856), 1 Grant. Cas. 414; Slatten v. Des Moines, etc., R. Co. (1870), 29 Iowa 148, 4 Am. Rep. 205; State v. Commissioners, etc. (1852), 23 N.J.L. 510, 57 Am. Dec. 409; Vermont Cent. R. Co. v. Town of Burlington (1855), 28 Vt. 193; Nashville, etc., R. Co. v. Cowardin (1850), 11 Humph. *347.
Subdivision three of § 5195, supra, 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 other accommodations necessary to accomplish the objects for which the corporation is created." Subdivision nine 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 shipping of stock. What are we to understand by the words "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 cases courts and commissions thereto delegated have the power to compel the constructing or furnishing of accommodations in the public interest, such as proper waiting rooms or stations, housing for the protection of property until delivered, and can require the establishing of stations and stopping places, and regulate the running of trains, upon the theory that having undertaken the duties of carriers they must discharge those duties with some regard to the public interest and necessities. Where the legislature has given authority to condemn for public use, the courts cannot inquire into the question of necessity. Vandalia Coal Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 144, 79 N.E. 1082; Richland School Tp. v. Overmyer (1905), 164 Ind. 382, 73 N.E. 811; Speck v. Kenoyer (1905), 164 Ind. 431, 73 N.E. 896; 2 Elliott, Railroads (2d ed.) § 973.
It has also been held that where the width of the right of way taken for a railway was less than the width...
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