Ochs v. Chicago & Northwestern Railway Company
| Decision Date | 12 January 1917 |
| Docket Number | 19,942 - (77) |
| Citation | 160 N.W. 866,135 Minn. 323 |
| Parties | A.C. OCHS v. CHICAGO & NORTHWESTERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
From an order of the Railroad and Warehouse Commission, granting the petition of A.C. Ochs, doing business as A.C. Ochs Brick & Tile Company, for an order requiring the railway company to construct certain side tracks at petitioner's plant, the Chicago & Northwestern Railway Company appealed to the district court for Brown county. The appeal was heard before Olsen, J., who made findings affirming the order of the commission. From the judgment entered pursuant to the order for judgment, Chicago & Northwestern Railway Company appealed. Affirmed.
Eminent domain -- taking property for a side track to factory.
1. Where a sidetrack becomes a part of the trackage of a railroad to be operated as a part of its railway system, the taking of property therefor is a taking for a public purpose.
Railway -- order to furnish sidetrack -- apportionment of expense -- police power.
2. The state under its police power may require a railroad company to provide such sidetrack facilities to industries adjacent to its tracks as shall be found to be necessary and reasonable under all the circumstances, and may apportion the necessary expense therefor between the company and the industry in such manner as shall be found to be reasonable.
Brown Abbott & Somsen, for appellant.
Lyndon A. Smith, Attorney General, Henry C. Flannery, Assistant Attorney General, and Aug. G. Erickson, for respondent.
Complainant has operated a brick and tile manufacturing plant adjacent to the tracks of the railway company at Springfield in Brown county for about 25 years, and has continuously shipped out large quantities of its products and shipped in fuel and other materials. During all that time the railway company has provided and operated spur or sidetracks to the plant. In the fall of 1914, complainant began the construction of an additional plant adjacent to the old plant, at an expense of about $150,000, which will double the former capacity of the plant. Complainant applied to the railway company to change and extend the spur or sidetracks so that they will serve both the old and the new plants. The railway company offered to make the desired changes and additions if complainant would bear the entire expense thereof, but refused to do so except upon that condition. Thereupon complainant presented the matter in due form to the Railroad and Warehouse Commission which ordered a hearing, and both parties appeared and took part therein. As a result of the hearing the commission among other things found that, "there was no dispute that this trackage was necessary for the proper operation of complainant's plant, the only question presented being upon what terms it should be constructed." * * * "Terms found to be reasonable are as follows: Complainant to furnish the right of way and give respondent a deed or agreement conveying to respondent the right to the perpetual use of said right of way for railroad use; complainant either do the grading required for the putting in of the new track or pay respondent for the same; also that complainant pay for the readjustment, raising or resetting of telephone poles if necessary, and dismantling or removing any buildings that is necessary in the construction of this track and all grubbing that is necessary, and that all the other expense for materials required or work or labor done in the construction of said track shall be paid for by respondent." The commission ordered the railway company to construct the trackage within 30 days after complainant had performed the conditions to be performed on its part. The railway company appealed to the district court where the case was tried anew and judgment rendered affirming the order of the commission. An appeal from that judgment brings the matter before this court.
The railway company still manifests its readiness to construct the trackage, if complainant will bear the expense thereof, but insists that the company cannot be compelled to bear any part of such expense.
At the outset the company lays down the unquestioned proposition that its property cannot be taken for private use, and asserts that requiring it to construct this trackage takes its property for private use....
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