Greasy Creek Mineral Co. v. Ely Jellico Coal Co.

• Decision Date: 11 March 1909
• Citation: 132 Ky. 692,116 S.W. 1189
• Parties: GREASY CREEK MINERAL CO. et al. v. ELY JELLICO COAL CO.
• Court: Kentucky Court of Appeals

116 S.W. 1189

132 Ky. 692

GREASY CREEK MINERAL CO. et al. v. ELY JELLICO COAL CO.

Court of Appeals of Kentucky.

March 11, 1909

Appeal from Circuit Court, Knox County.

"To be officially reported."

Proceedings by the Ely Jellico Coal Company against the Greasy Creek Mineral Company and others to condemn land for a spur railroad track. From a judgment of condemnation and damages defendants appeal. Affirmed.

J. D Black, J. H. Wilson, Pitzer D. Black, W. R. Black, and H. N Camp, Jr., for appellants.

J. D. Tuggle, for appellee.

O'REAR J.

Appellant Greasy Creek Mineral Company owns a tract of land in Knox county adjacent to the Cumberland Valley Branch of the Louisville & Nashville Railroad. It operates a coal mine on this land. In order to reach its mine with cars, it has built a spur track nearly a mile long. The land is mountainous. Adjoining appellants' land is another tract of about 600 acres owned by appellee. The latter opened a coal mine on its land. In order to reach its mine, it was necessary to build a spur railroad track about a mile long from the Louisville & Nashville line. This spur has to be on a different grade from appellants' track, though running about parallel with it. The valley between the mountains which it was necessary to follow in order to build the two tracks is narrow. The branch is the dividing line between appellants' and appellee's lands. There is another colliery in the same valley, known as the Hughes mine, which is below appellee. There was also a railroad track to it. When appellee started to build the track to its mine, it was unable to agree with appellant for the use of any of the latter's land as a right of way for the track. This proceeding was then instituted under section 815, Ky. St. (Russell's St. § 5352), to condemn two strips of land belonging to appellant as part of a right of way for the use of appellee's railroad tracks. The proceeding was resisted in the county court. There the commissioners and the court fixed upon a sum as compensation for the land taken and the damage done to the remainder of appellants' tract by the prudent operation of appellee's road. On appeal, substantially the same damage was awarded by the jury in the circuit court. It is not contended by appellant that the sum awarded is inadequate. It complains because (1) of the alleged unconstitutionality of section 815, Ky. St.; and (2) that the taking of the land in question was not necessary to enable appellee to build a railroad to its mine. Section 815, Ky. St., is as follows: "Any person engaged in operating a mine or stone quarry within three miles of any navigable stream or railroad, may, for the purpose of transporting material to and from such stream or railroad and such mine or quarry, construct and operate a railroad from such mine or quarry to the most convenient and accessible point on such stream or road, and may, under the general laws, condemn such land as may be necessary, not exceeding fifty feet in width for each track necessarily constructed, and not exceeding two acres of land at such railroad or stream for the purpose of necessary buildings. The owner or operator of such road shall be, so far as they are applicable, governed and controlled by the laws relating to other railroads, and shall have the same rights and privileges granted to corporations owning and operating lines of railroad."

Appellee's position is that the building of a railroad by a mineowner for the exclusive use of his own mine is a purely private enterprise; that the operator does not owe or discharge any public duty; and that, if he be allowed to exercise the right of eminent domain, it would be to let one person, under that power which lays alone in the sovereign, take one man's property to another man's private use. We do not find it necessary to enter into a discussion of the power of the state to empower a private person to take property of another by condemnation for private use. The statute in question in this case is a part of the chapter on railroads. It provides for the building of a railroad, not more than three miles long, for a particular purpose; that is, to a mine or quarry. The statute expressly brings such roads, so far as the conditions may apply, within the general laws regulating all railroads. We understand this to mean that these short roads, like trunk lines and other railroads, are subject to the laws affecting common carriers, and that they may be required to serve the public as common carriers. Indeed, such construction seems to have been implied in the opinion in Bowling Green Stone Co. v. Oman, 115 Ky. 369, 73 S.W. 1038. It may be that the owner of the track may not have cars and engines with which to serve the public; but if an arrangement be made with another carrier to supply the necessary equipment, and it is done, we perceive no reason why every interest of the public in the matter is not satisfied. We held in L. & N. R. R. Co. v. P. & Ky. Coal Co., 111 Ky. 960, 64 S.W. 969, 55 L. R. A. 601, 98 Am. St. Rep. 447, that in using such spur tracks the operating railroad company was bound to serve all the public alike, and could not by contract limit its services to one customer upon the spur. This construction rescues the section from the vice imputed to it by appellants. The Legislature must have intended by the language of the section bringing...