Syllabus
by the Court.
Under
section 33 of article 9 of the Constitution of Oklahoma, a
farm may come within the term "other industry."
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, saw mill, elevator
or other industry is sufficient to justify the same.
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.
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.
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.
Appeal
from Corporation Commission.
Complaint
by the State and Fred A. Chapman against the Chicago, Rock
Island & Pacific Railway Company before the Corporation
Commission to require installation and replacement of a
switch, in which the commission made such an order against
the Railway Company, which appeals. Order of Corporation
Commission vacated and set aside.
MILLER
J.
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,
Okl. 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 reads
as follows:
"Cause
No. 3992.
The complainant says:
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 Chicago, Rock Island & Pacific Railway Company, on or about the 1st 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, Okl., 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 Chicago, Rock
Island & Pacific Railway Company the sum of $350 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 2d day of July, 1920.
Fred A. Chapman, Complainant.
Cause
No. 3992. Order No. 1816.
On the 2d 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, Okl., 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 cost of laying said track, to wit,
the sum of $350. That said spur was necessary and essential
to petitioner and his renters and neighbors for loading out
cord wood, 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 4,000 or 5,000 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 600 or 700 cords, with
about 200 cords now ready for shipment; that there was moved
in and out of said spur of various farm products some 50 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 $5 per cord to transport same by wagon to either
railway stations. 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 & Pacific Railway Company, immediately reinstall and rebuild
what is known as the Chapman spur, located 2.4 miles from
Mannsville and 3 miles from Russett, on the Ardmore branch of
the Chicago, Rock Island & Pacific and the spur to remain in
service until further ordered by this Commission.
Done at Oklahoma City this 7th 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, Okl., 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 load 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
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