Kansas & T. Coal Ry. Co. v. Northwestern Coal & Mining Co.

• Decision Date: 25 January 1901
• Citation: 161 Mo. 288,61 S.W. 684
• Court: Missouri Supreme Court
• Parties: KANSAS & T. COAL RY. CO. v. NORTHWESTERN COAL & MINING CO. et al.

61 S.W. 684

161 Mo. 288

KANSAS & T. COAL RY. CO. v. NORTHWESTERN COAL & MINING CO. et al.

Supreme Court of Missouri.

January 25, 1901.

EMINENT DOMAIN — RAILROADS — COAL MINING COMPANY — DIRECTORS AND STOCKHOLDERS — PRIVATE ROAD — PRIVATE PROPERTY — PUBLIC USE — JUDICIAL DETERMINATION — RIGHT OF WAY — RIGHT TO SELECT — INTENTION.

1. Where a railroad company is regularly organized as such under laws making it a common carrier, the fact that its officers, directors, and stockholders are the same as those of a coal-mining company, from which the railroad company will probably draw the major portion of its business, and that the mining company has loaned the railroad company the most of the capital required to build the road, does not render it a private road, so as to deprive it of the power of eminent domain.

2. Under Const. art. 2, § 20, providing that, whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined, without regard to any legislative assertion that the use is public, the general course of judicial decision, that use by a regularly organized railroad corporation is a public use, is a sufficient "judicial determination" to entitle a railroad company to exercise the power of eminent domain without a special investigation of the facts of the particular case.

3. In a proceeding by a railroad company to condemn a right of way over the lands of a coal-mining company, the fact that a coal company which has the same officers and stockholders as the petitioning railroad company, and which will furnish nearly all of the business of the plaintiff company, is authorized by statute to condemn land and build a tramway to transport its product to market, is not a defense to the action.

4. In an action by a railroad company to condemn a right of way over the lands of a coal company, the fact that the right of way might just as easily be located on the land of another coal mining company, whose officers and stockholders are the same as those of the plaintiff company, and which will furnish the bulk of the plaintiff's company's business, is no defense, since a railroad company is given by the legislature the right to select the location it prefers for its right of way.

5. Rev. St. 1889, § 2741 (section 1272, Rev. St. 1899), providing that, in case lands sought to be appropriated for a railroad right of way are held by any corporation, the right to appropriate

the same shall be limited to such use as shall not materially interfere with the uses to which the corporation holding the same is authorized by law to put such lands, does not forbid the appropriation of the lands of a corporation engaged in coal mining for use as a railroad right of way, even though such use materially interferes with their use by the coal company, since Const. art. 12, § 4, declares that the right of eminent domain shall never be abridged so as to prevent the taking of the property of any incorporated company, and subjecting it to public use, and the use by the railroad company is a superior public use to that by the coal company.

6. Plaintiff railroad company sought to condemn a right of way over the property of a mining company which owned and operated a short railway in such manner that the tracks of plaintiff and defendant would run parallel, and it would be 14 feet from the center of one track to the center of the other. The shaft to the mine of defendant was from 56 to 72 feet from the strip of land sought to be condemned, and the main track, switches, and loading tracks of the defendant were on the strip of 56 to 72 feet, which was between the strip sought to be appropriated and the shaft to defendant's mine. Held, that the appropriation of the right of way desired by the plaintiff would not materially interfere with the operation of defendant's mine, so as to preclude plaintiff's right to condemn the same.

7. Under Rev. St. 1889, § 2741 (section 1272, Rev. St. 1899), providing that the right of a railroad company to appropriate land held by any other corporation shall be limited to such use as shall not materially interfere with the use to which the corporation holding the land is authorized by law to put the same, the allegation by defendant that it "intends" to make such use of its lands that the use by plaintiff railroad company of a right of way, which it seeks to condemn over them, will materially interfere with its business, is not a good defense, since the court must deal with conditions that exist at the time condemnation is asked, and cannot consider conditions that may arise.

Burgess, C. J., and Valliant and Gantt, JJ., dissent.

In banc. Error to circuit court, Macon county; N. M. Shelton, Judge.

Proceeding by the Kansas & Texas Coal Railway Company against the Northwestern Coal & Mining Company and others to condemn land for a right of way. From a judgment refusing to appoint commissioners to appraise damages, plaintiff appeals. Reversed.

The plaintiff is a duly organized and chartered railroad company, under the provisions of article 2, c. 42, Rev. St. Mo. 1889, for the purpose of constructing and operating a broad-gauge railroad "for public use in the conveyance of persons and property from a point in, at, or near the town of Ardmore, Macon county, Missouri, to a point in, at, or near the town of Bevier, in the same county and state, a distance of ten miles or more." The plaintiff is also the lessee for a term of 20 years from July 1, 1899, from the Wabash Railroad of its branch railroad from Excello to Ardmore. So that the plaintiff's railroad, with the leased line aforesaid, will form a continuous railroad from the town of Excello, on the Wabash Railroad, to the town of Bevier, on the Hannibal & St. Joseph Railroad. The defendant the Northwestern Coal & Mining Company is a business corporation, organized under the provisions of article 8, Id., for the purpose of acquiring, selling, and operating coal lands and coal mines, and to buy, sell, and deal in merchandise, and to own, operate, and sell electric light and power plants, and to furnish and sell electric light and power. The said defendant holds, as owner or lessee, considerable land on which there have been opened and are being operated coal mines, and in connection with the defendant Watson owns a railroad, and right of way therefor, beginning at a mine owned by defendant Watson, and located several thousand feet southeast of the coal company's mine, and extending in a general northwardly direction to and beyond the mine of the coal company, called "Mine No. 7," and to or near a bridge over Sulphur creek, at which point it connects with a railroad owned by the Kansas & Texas Coal Company (likewise a business corporation), and over which lastnamed road the cars of the railroad owned by the defendant coal company and Watson are run, under a contract therefor with the Kansas & Texas Coal Company, for a distance of about 1,300 feet, to the town of Bevier, on the line of the Hannibal & St. Joseph Railroad. In this way the output of coal from the Watson mine and the Northwestern Coal & Mining Company's mine No. 7 is transported to the line of the Hannibal & St. Joseph Railroad, and over that road to the markets of the world. The mine of the Northwestern Coal & Mining Company, called "Mine No. 7," was leased by that company to the Kansas & Texas Coal Company on the 15th of March, 1898, for a term beginning on the 1st of January, 1898, "until such time as the coal in and underlying said lands shall be entirely worked, and in the manner" provided in the lease, unless the lease is sooner terminated, as therein provided. The lease provided that the lessor was to receive a royalty of 5½ cents per ton of 2,000 pounds, and that the lessee should so operate the mine as that the royalty should exceed or equal the sum of $550 a month, and the lessee should also pay such royalty of 5½ cents per ton on all coal mined in excess of 120,000 tons a year. The lessor reserved the right to cancel the lease on the 1st of April, 1901, or on the 1st of April of any subsequent year, by giving six months' notice of intention so to do. Under the terms of this lease, the Kansas & Texas Coal Company is, and at all the times since the date of the lease has been, operating mine No. 7, and the average daily output of the mine is 700 tons, while that from the Watson mine is from 500 to 600 tons, daily. The railroad of the Kansas & Texas Coal Company, over which the cars of the defendant run from Sulphur creek to Bevier, extends southwestwardly from the intersection of those roads to Mine No. 43, which mine is also operated by the Kansas & Texas Coal Company.

This was the condition of affairs on the 16th of April, 1899, when the Kansas & Texas Coal Railway instituted this proceeding, under the provisions of article 6, c. 42, Rev. St. 1889, for the purpose of condemning a right of way over five pieces of real estate, three of which pieces lie immediately east of the main line of the railroad of the Northwestern Coal & Mining Company, and such strips commence 7 feet east of the center line of the main or most eastward track of the Northwestern Coal Company's railroad, and extend from Sulphur creek for a distance of some 3,700 feet, to a point 1,700 feet south of mine No. 7, where it is proposed to cross the railroad of the Northwestern Coal Company. In other words, the purpose of this suit is to condemn a right of way for the plaintiff railroad beginning at Sulphur creek, and paralleling the most easterly track of the Northwestern Coal Company's railroad for a distance of 3,700 feet, and there crossing the defendant's track, so as to proceed to the town of Ardmore. The western line of the right of way sought to be acquired by the plaintiff is 7 feet from the center of the defendant's main or most easterly track, and the center of the...