Great Northern Ry. Co. v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 24 November 1959
• Docket Number: No. 9738,9738
• Citation: 78 S.D. 168,99 N.W.2d 439
• Court: South Dakota Supreme Court
• Parties: GREAT NORTHERN RAILWAY COMPANY, Plaintiff and Respondent, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY and Chicago and North Western Railway Company, Defendants and Appellants.

Page 439

99 N.W.2d 439

78 S.D. 168

GREAT NORTHERN RAILWAY COMPANY, Plaintiff and Respondent, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY and Chicago and North Western Railway Company Defendants and Appellants.

No. 9738.

Supreme Court of South Dakota.

Nov. 24, 1959.

Churchill, Churchill & Sauer, Huron, Edgar Vanneman, Jr., Chicago, Ill., for defendants-appellants.

Anthony Kane, John C. Smith, St. Paul, Minn., H. F. Chapman, Sioux Falls, for plaintiff-respondent.

HANSON, Presiding Judge.

In this eminent domain proceeding the Great Northern Railway Company seeks to acquire an easement across the right of way owned by the Omaha Railway Company and leased by the Chicago and North Western Railway Company. The issues were submitted to the trial court on defendants' motion to dismiss the complaint. The motion was denied. Thereafter the amount of damages was stipulated and defendants have appealed from the order denying their motion to dismiss and from the judgment. For clarity the plaintiff-respondent will be referred to as 'plaintiff' or 'The Great Northern' and defendants-appellants will be referred to as 'defendants' or 'The Omaha'.

The tracks of the Great Northern and the Omaha parallel each other as they extend easterly out of the City of Sioux Falls. The Great Northern owns two tracts of land of approximately 51 acres situated within the corporate limits of the city. This land is cut off and separated from the Great Northern right of way only by the tracks and right of way of the Omaha. The land was formerly used by the Great Northern as a source of gravel. In its petition for condemnation the Great Northern alleges that 'said gravel has now been exhausted and plaintiff desires to develop said tracts for the location thereon of industries or industrial enterprises; that in order to so develop said property it is necessary that plaintiff establish rail service to said property by the construction of an industrial or spur track from its line of railroad as presently located and constructed across the single track and right of way of the Chicago, St. Paul, Minneapolis and Omaha Railway Company * * *. That it is necessary for the maintenance, operation and convenient use of its railroad, in order to accomplish the object of its incorporation, for plaintiff to cross and intersect its railroad with the railroad owned by defendant * * * said spur or industrial track to be used to serve industries or industrial enterprises * * * such use being a public use under and by virtue of the laws of the State of South Dakota.'

Upon refusal of the defendant companies to grant an easement across their right of way the Great Northern, by application, invoked the jurisdiction of the South Dakota Public Utilities Commission under the provisions of SDC 28.1101 and 52.0801(6). On May 7, 1956, the Commission approved the location, plans and specifications of said crossing and authorized its construction.

On defendants' further refusal to grant an easement the Great Northern filed a second application with the South Dakota Public Utilities Commission under the following provisions of our code:

'52.0825 Right of way for spur tracks. Every railroad company owning, leasing, or operating a line of railroad in this state shall have power to condemn property for the right of way of spur tracks designed to reach o serve industries or industrial enterprises, such as mills, mines, smelters, factories, warehouses, and other manufacturing and industrial enterprises, for which regular scheduled passenger or freight train service is not performed, and for transportation for which only a switching charge, if any, is made, upon obtaining the consent of the Public Utilities Commission to the construction of such spur tracks, and the construction of such spur tracks, when the consent thereto of the Public Utilities Commission has been obtained, is hereby declared to constitute a public use.

'Any railroad company desiring to condemn property for the right of way of a spur track designed for the purpose mentioned in this section shall file with the Public Utilities Commission a petition setting forth the proposed line of such spur track, the purpose for which it is intended, and the particular description of the land to be taken by condemnation proceedings, together with the name of the owner of such land and his place of residence, if known to the person verifying such petition. Such petition shall be verified by an officer, agent, or attorney of the railroad company filing the same, who shall have personal knowledge of the facts therein stated.

'52.0826 Spur track: hearing on; notice. Upon the filing of a petition by any railroad company, as set forth in section 52.0825, the Public Utilities Commission shall set a time and place for the hearing of the same, and shall publish in at least two issues of some newspaper of general circulation, printed and published in the county in which the land sought to be condemned is situated, a notice of such hearing, which shall contain a description of the land sought to be condemned, together with a statement of the purpose for which such condemnation is desired. The first publication of such notice shall be not less than ten days before the date set for the hearing upon such petition. If no newspaper be published in the county in which the land is situated, such notice shall be published in some newspaper of general circulation printed and published at the city of Pierre. The Public Utilities Commission shall also cause a copy of such notice to be mailed to the owner of the property sought to be condemned, at his post office address or place of residence as disclosed by such petition, or at such other address as the Public Utilities Commission shall deem most likely to give him notice of the hearing upon such petition.

'52.0827 Spur track: order of Commission for condemnation; powers of company. Upon the hearing upon the petition, the Public Utilities Commission shall take evidence as to the necessity for the construction of such spur track, and may satisfy itself in such further manner as it may deem advisable in regard to the necessity for the construction of such spur track and for the condemnation of property for the right of way therefor, and if the Public Utilities Commission shall be of the opinion that a public necessity exists for the construction of such spur track and for the condemnation of property for the right of way therefor, such Commission shall adopt a resolution and cause the same to be entered upon the minutes of the Commission, giving the consent of the Public Utilities Commission to the construction of such...