Northern P. Ry. Co. v. Railroad Com'n of Washington

• Decision Date: 18 May 1910
• Parties: NORTHERN PAC. RY. CO. v. RAILROAD COMMISSION OF WASHINGTON.
• Court: Washington Supreme Court

108 P. 938

58 Wash. 360

NORTHERN PAC. RY. CO. v. RAILROAD COMMISSION OF WASHINGTON.

Supreme Court of Washington

May 18, 1910

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

H. A Burnham petitioned the Railroad Commission for an order to the Northern Pacific Railway Company, which was granted, and it appeals. Reversed and dismissed.

B. S Grosscup, for appellant.

W. P Bell and W. V. Tanner, for respondent.

GOSE, J.

This appeal is prosecuted from a judgment of the superior court of Pierce county, affirming an order of the Railroad Commission requiring the appellant to construct and operate a spur track from its main line road to the sawmill of one H. A. Burnham. The appellant owns and operates a line of railroad, extending from Tacoma easterly and southeasterly through the state and southerly through Rainier and McIntosh to the Columbia river. Rainier and McIntosh are stations about four miles apart. Mr Burnham owns and operates a sawmill about midway between the stations and about 300 feet from the appellant's main-line track. He manufactures about 6 car loads per week of lumber and other sawed timbers, for shipment over appellant's lines of road, and hauls it by means of wagons and teams to Rainier, a distance of about 2 1/2 miles by wagon road, at an expense of about $40 a car load for hauling and loading. With a spur track to his mill, he could put his products aboard the car for about $5 per car load. He has demanded of the appellant that it furnish him with a spur track to the mill, has offered to furnish a right of way for the track, grade the track, and furnish and lay the ties under the direction of the appellant; but it has refused to comply with his demand. Upon a complaint alleging these facts, and also alleging that a spur track can be constructed at small expense to the appellant, extending from the main line of its road to the mill, without endangering or rendering difficult the operation of trains, the case was heard before the Railroad Commission. The commission found the facts stated, and that a necessity exists for the spur track. Thereafter it entered an order requiring Burnham to construct the grade and furnish proper and necessary ties, and requiring appellant to furnish and lay the rails, construct the spur track, provide proper connections with its main line, and furnish Burnham with cars and facilities for loading his lumber at his mill for shipment over the appellant's lines. The order makes no provision for a right of way, and the evidence does not disclose who owns the land over which the spur track is to be constructed. A compliance with the order would require switching to the extent of about a mile, and would consume from a quarter to a half hour every time a car was taken to or from the mill.

The appellant contends that the order is a taking of its property without due process of law, and that it contravenes the fourteenth article of amendment to the federal Constitution. We think this view must prevail. The sawmill is a private industry, and the effect of the order is to take the private property of the appellant and devote it to the private use of Burnham. Healy Lumber Co. v. Morris, 33 Wash. 491, 74 P. 681, 63 L. R. A. 820, 99 Am. St. Rep. 964. A railroad is a public highway and, as such, is subject to regulation; but the regulation must be promotive of the public interest. Notwithstanding the fact that it is a public highway, its property is private. In Missouri Pacific Railway Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463, speaking of the fourteenth amendment, it is said: 'It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. The difficulty, and perhaps impossibility was referred to by Mr. Justice Miller, in Davidson v. New Orleans, 96 U.S. 97 , where the opinion was expressed that it is wiser to ascertain their intent and application by the 'gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.'' It is true that railroad companies may be required to fence their tracks, establish proper crossings at points of intersection with public roads, patrol their tracks at thickly populated points, establish depots and stations, provide suitable connection with intersecting lines, adopt suitable safety appliances for the coupling of cars, properly light and heat their cars and depots, and many other things which touch the public business. The sawmill of Mr. Burnham, while an important industry, is no more a public business than a flouring mill, a dairy, a farm, a livery barn, or a manufacturing plant of any other character or description.

The case at bar falls squarely within the principle announced and applied in Missouri Pacific Railway Company v Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489. In that case the Supreme Court of the state of Nebraska had awarded a writ of mandamus to compel the railway company to comply with an order of the State Board of Transportation, which directed the company to grant to certain private persons the right and privilege of erecting an elevator upon the grounds of the railway company at one of its stations. The complaint upon which the order was based recited that the elevator would be used to store the cereal products of the farms and leaseholds of the complainants as well as the products of other neighboring farms. Upon a writ of error to review the judgment, the court said: '* * * The order in question, so far as it...