Nedved v. Chicago

• Decision Date: 21 July 1915
• Docket Number: 3713
• Citation: 36 S.D. 1,153 N.W. 886
• Parties: CHARLES NEDVED et al., Plaintiffs and respondents, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

M. & St. P. Ry. Co., 36 S.D. 1, 153 N.W. 886

CHARLES NEDVED et al., Plaintiffs and respondents v CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Thomas L. Bouck, Judge #3713--Affirmed William G. Porter, Ed. L. Grantham Attorneys for Appellant. Joseph Janousek Attorney for Respondents. P. W. Dougherty, Oliver E. Sweet Attorneys for Railroad Commissioners. Opinion filed July 21, 1915

McCOY, P. J.

Under the provisions of the statute, section 534, Civil Code, plaintiffs, 95 in number, instituted this proceeding before the railroad commissioners for the construction and maintenance of a side track between the stations of Tabor and Yankton on defendant's lines of railway in Yankton county. The matter was heard before the railroad commissioners and an order issued requiring the construction of such side track. From said order an appeal was taken to the circuit court. This appeal is taken from the order and judgment of the circuit court affirming the action of the railroad commissioners.

Section 534, Civil Code, provides that where stations are more than twelve miles apart railroad companies, when required so to do by the board of railroad commissioners, shall construct and maintain a side track for the use of shippers between such stations.

The following plat shows the relative location of defendant's lines and stations thereon and approximate distances so far as material to the issues presented:

The first contention of appellant is that the court erred in finding the distance between Tabor and Utica, via Napa Junction, to be 14.1 miles, when as a matter of fact in a direct line Tabor and Utica are not to exceed 8.5 miles apart. We are of the view that under this statute the "distance between stations" means the distance apart along the line of the railway track upon which such stations are situated. It appears that Utica and Tabor, via Napa Junction, are 14.1 miles apart. If Napa Junction were 40 miles east of Tabor with Utica only 8.5 miles distance in a direct line across country, would it be a reasonable proposition to conclude that no sidings could be required to be constructed between them because Tabor and Utica were less than 12 miles apart? We think not.

It is next contended by appellant that the board of railroad commissioners has not arbitrary power to order aside track. With his statement we...