Columbus & Greenville Ry. Co. v. Scales

Decision Date10 April 1991
Docket NumberNo. 90-IA-0423,90-IA-0423
Citation578 So.2d 275
CourtMississippi Supreme Court
PartiesCOLUMBUS & GREENVILLE RAILWAY COMPANY v. Susan M. SCALES, Gerald J. Montgomery, Jr., Susan Montgomery, Tom R. Pitts, Joan T. Pitts, and Dexter Walcott.

Arnold F. Gwin, Greenwood, for appellants.

James Y. Dale, Whittington, Brock, Swayze & Dale, Greenwood, for appellee.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

HAWKINS, Presiding Justice, for the Court:

This appeal involves the effect, if any, a zoning ordinance of Leflore County has upon a railroad.

We hold on the first of the two questions presented by this appeal that the board of supervisors of the county had the statutory authority to enact a zoning ordinance affecting the Columbus and Greenville Railway Company's railroad in that county, subject to a reasonableness test that recognizes a railroad is a common carrier.

For the reasons stated, we decline to address the second issue, whether or not the county ordinance did in fact apply to the railroad.

FACTS

On March 3, 1982, the Leflore County board of supervisors adopted a county-wide zoning ordinance covering all land in the county outside corporate limits.

On October 10, 1989, Susan M. Scales and over twenty other plaintiffs filed an amended complaint in the chancery court of Leflore County against the Columbus & Greenville Railway Company (C & G). Plaintiffs live just West of the corporate limits of Greenwood on River Road Extended which runs along the south banks of the Yazoo River.

The defendant C & G operates a railroad across the state from Columbus to Greenville and is entirely intra-state. Just west of the corporate limits of Greenwood, and running westerly, the railroad takes a sharp left turn and runs for a short distance in a southwest direction. Just into this southwest turn, after being awarded a federal grant for the purpose, the defendant in 1989 commenced enlarging its single track to include two additional tracks to be used for switching cars. The railroad is on a one-hundred-foot-wide right-of-way, and the additional tracks would be constructed within this right-of-way. None of the plaintiffs' lots abut the railroad right-of-way. This portion of the railroad is separated from their residences by a half-mile of open cotton fields. Plaintiffs' property is North of the railroad.

The complaint alleges the land through which the railroad travels is zoned agricultural, and that the defendant was in violation of the zoning ordinance in adding the switching tracks, and that no permit had been granted by the county board to construct them.

The complaint alleges that construction of the tracks also violated federal and state environmental standards, and funding for it violated due process. Further, that the switching yard would create a public and private nuisance, an "attractive nuisance" to children in the area, hazardous waste storage, and would bring in "undesirables into the area as result of overnight parking of trains in the area immediately south of plaintiffs' homes, and in other respects to be shown."

In its answer filed December 1, C & G's first defense was that the complaint failed to state a cause of action, and moved to dismiss.

We must surmise there was a further motion filed to dismiss that portion of the complaint alleging a zoning ordinance violation, because on April 7, 1990, the special chancellor entered an order overruling this motion, and it is this order upon which this appeal is based.

The order first recites that this motion is dismissed "on the ground that the Court is of the opinion that the Leflore County zoning ordinance does apply to the defendant in this case." The order further recites that the chancellor was of the opinion that a substantial basis for a difference of opinion existed on the "question of law as to whether or not the Leflore County zoning ordinance does apply to the railroad," and that "appellate resolution of this issue at law may materially advance the termination of the litigation in this case." He accordingly granted an interlocutory appeal, recommending that it be expedited.

On May 22, 1990, this Court, with two Justices dissenting, granted the petition for interlocutory appeal, and expedited briefing schedule.

The motion to dismiss upon which the chancellor ruled was only that portion seeking relief predicated upon a violation of the zoning ordinance. Whether or not the remaining portion of the complaint stated a cause of action was not addressed by the chancellor nor do we.

The appellant C & G's brief raises two issues, the first being whether or not the board of supervisors had the statutory authority to adopt a zoning ordinance restricting use by a railroad of property owned by it when the ordinance was adopted. Does a board of supervisors have the legal authority to make a zoning ordinance apply to a common carrier railroad? The second issue is whether this particular zoning ordinance applies to the C & G railroad.

We hold that in a very limited way a common carrier railroad may be subject to local zoning regulations. For the reasons set forth, we decline on this appeal to address the second issue.

I. STATUTORY AUTHORITY

A common carrier railroad is an enterprise on which many municipalities and counties depend. Its successful, efficient operation has an economic impact throughout the state, and most especially on communities through which it runs. 1

Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717 (1949), answers the question of the county's authority to pass a zoning ordinance affecting a railroad right-of-way. This Court held, in interpreting Secs. 3590-3597 of the Mississippi Code of 1942, that the city of Hattiesburg had the statutory authority to pass a zoning ordinance affecting railroad property. Id. Miss.Code Ann. Sec. 17-1-3 (1972) gives the same authority to a county board of supervisors that Sec. 3590 of the 1942 code granted municipalities. Also, Miss.Code Ann. Sec. 17-1-15 (1972). We accordingly hold that when the zoning ordinance was adopted by the board of supervisors of Leflore County the county had statutory authority to make provisions affecting use of railroad property.

Jones is also authority for the principle that "a railroad company may use its right-of-way not merely for its track but for any other building or structure which reasonably tends to facilitate its business." 207 Miss. at 498, 42 So.2d at 719. And, we struck as unreasonable and arbitrary a refusal by the city to grant the railroad and its lessee a building permit to construct a warehouse on the railroad right-of-way in a residentially zoned area. Jones, 207 Miss. at 550, 42 So.2d at 499. For the reasons hereinafter noted, we do not address whether the zoning ordinance itself applies to railroads. At the same time, from the record before us, we are constrained to observe, in fairness to all parties, that on remand if it is contended in the chancery court that the zoning ordinance does apply, then under our holding in Jones the county zoning authorities will be hard pressed to deny a permit for the construction of these additional tracks. The switching tracks do not appear to cross any highway, and are in a countryside of open farmland a half mile from the nearest residence.

Some states by statute vest exclusive authority in public service commissions or their equivalent to regulate railroads. Thus, in Commonwealth v. Delaware & Hudson Railway Co., 19 Pa.Commw. 59, 339 A.2d 155 (1975), a case in which a railway company had been convicted of violating a local zoning ordinance because it had constructed an additional railroad track without obtaining a building permit, the Pennsylvania Commonwealth Court held:

The clear intent of Duquesne [Light Co. v. Upper St. Clair, 377 Pa. 323, 105 A.2d 287 (1954) ] supra, and the many cases cited therein is to uphold the proposition that public utilities are to be regulated exclusively by an agency of the Commonwealth with state-wide jurisdiction rather than by a myriad of local governments with different regulations.

"If each county were to pronounce its own regulation and control over electric wires, pipe lines and oil lines, the conveyors of power and fuel could become so twisted and knotted as to affect adversely the welfare of the entire state. It is for that reason that the Legislature has vested in the Public Utility Commission exclusive authority over the complex and technical service and engineering questions arising in the location, construction and maintenance of all public utilities facilities. ..." (Citations omitted.) Chester County v. Philadelphia Electric Company, 420 Pa. 422, 425-26, 218 A.2d 331, 333 (1966). (Parenthesis original)

This reasoning is equally applicable to railroads. Therefore, to the extent that Section 619 of the Pennsylvania Municipalities Planning Code gives any authority to local governments to regulate public utilities, that authority must be strictly limited to the express statutory language. The Pennsylvania Municipalities Planning Code itself states in Section 1202, 53 P.S. Sec. 11202 that it "shall not repeal or modify any of the provisions of the 'Public Utility Law'...."

We hold that the word "building" in Section 619 of the Pennsylvania Municipalities Planning Code does not include railroad tracks as it does not include transmission lines of power companies....

Commonwealth, 339 A.2d at 157. The Pennsylvania court also noted that the public utility law of that state gave the municipality a forum to voice its objection to any such construction before that state's commission. Id. See also, Burlington Out Now v. Burlington Northern, Inc., 532 P.2d 936, 938 (Idaho 1975).

Massachusetts and New Jersey give their departments of public utilities authority to exempt a railroad from the provisions of a local zoning ordinance. Town of Westborough v. Department of Public Utilities, 358 Mass. 716, 267 N.E.2d 110 (1971); New York Central R. Co. v....

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