Oregon Short Line R. Co. v. Kimama Highway Dist.

• Decision Date: 12 February 1923
• Docket Number: 1023.
• Citation: 287 F. 734
• Parties: OREGON SHORT LINE R. CO. v. KIMAMA HIGHWAY DIST. et al.
• Court: U.S. District Court — District of Idaho

287 F. 734

OREGON SHORT LINE R. CO. v. KIMAMA HIGHWAY DIST. et al.

No. 1023.

United States District Court, D. Idaho, Southern Division.

February 12, 1923

Geo. H Smith, of Salt Lake City, Utah, and H. B. Thompson, and John O. Moran, both of Pocatello, Idaho, for plaintiff.

Sullivan & Sullivan, of Boise, Idaho, and Paul S. Haddock, of Shoshone, Idaho, for defendants.

DIETRICH District Judge.

Formerly the territory of defendant Kimama highway district constituted Kimama good roads district, and is all within Lincoln county, Idaho. In September, 1919, proceedings were taken under the provisions of an act approved March 12, 1919 (Session Laws of Idaho, 1919, p. 141; section 1502, Idaho Compiled Statutes), to convert it into a highway district and order to that effect was entered by the board of county commissioners, which the plaintiff contends was without jurisdiction, and hence void. However that may be, the highway district was organized, and at an election called by the board of highway commissioners in July, 1922, it was unanimously voted to authorize the issuance of bonds in the amount of $90,000, for the construction of a road from east to west through the district, parallel with the plaintiff's railroad track, and it is alleged that, if not restrained from so doing, the board will issue and sell such bonds, to the plaintiff's great injury, and it is for the purpose of securing such injunctive relief that the plaintiff has brought this suit. The legal propositions upon which it relies can best be disclosed by a statement of the facts which, in the main, are undisputed.

The district is approximately 10 miles wide north and south and 15 miles long east and west, and has an area of about 96,000 acres. Running through it in an easterly and westerly direction is the plaintiff's right of way for its main line of railroad from Green River, Wyo., to Huntington, Or. As already suggested, the road to be constructed is substantially parallel with the railroad, and is designed to be a section of a state and national highway extending indefinitely through and beyond the boundaries of the state. The territory embraced within the district is for the most part public domain of the United States, and is what is known as arid, sagebrush land, in part susceptible to cultivation if water is made available for its irrigation, but, without water, suited to neither cultivation nor habitation. Whether it will ever be irrigated is still problematical, and the most that can be said is that there is ground for the hope, scarcely for the expectation, that at some time in the future water will be provided. There is no timber or mineral deposit or other natural resource within or in the vicinity of the district, nor any town or village, the nearest places of this character being small village communities about 15 miles easterly and westerly from the district, upon the line of plaintiff's railroad. Within the district the plaintiff has three points-- Sid, Senter, and Kimama-- where it maintains side or passing tracks, and at this last-named point it maintains a station, with a station agent. At this place, also, there is a little store, and in addition to the railroad employes there are three or four families.

It is to be inferred that at one time it was hoped that water would be provided in the near future for the irrigation of some of the lands, or it was thought 'dry farming' might be carried on successfully, and a number of entries on public land were made and a town site laid out at Kimama, but the few farmhouses, apparently five or six, and the little church building, within the territory, have now been abandoned. Some idea of the agricultural production may be gotten from the railroad business transacted at Kimama and the other sidings in the district. In 1918 only a little more than one carload of wheat was shipped out, and about the same amount in 1919, nothing in 1920, in 1921 two carloads, and in 1922 one carload. No other products of the soil were sent out. Other shipments for this period were a carload of immigrant movables, and several carloads of sheep. That the defendants practically admit that there is no local need or use for the road, but that it is simply to be a link in a through highway, is apparent from the written brief submitted:

'The evidence shows (so it is stated) that in the case at bar the particular highway in question through the Kimama highway district has been designated as a through state highway.' And further:

'The evidence shows that (in the year 1922) the farms in the district had been abandoned with the exception of two; that the improvements were being taken off of the farms. Plaintiff's own witness testified that the land was of no value, except for grazing purposes, and it is common knowledge, of which the court may take judicial notice, that desert lands in that portion of southern Idaho have little or no value as grazing lands.'

At the time of the hearing (December, 1922) there was but one farmer left in the district. In 1921 the assessed value of all the property in the district was $988,894, of which total $923,715 was for the plaintiff's railroad, and $65,179 for all other property, real and personal. In other words, the railroad valuation represented 93.4 per cent. of all property in the district, and of the $65,179 only $44,000 was assessed upon farms and town site, and other local property; the balance of about $21,000 being on telegraph lines, Pullman cars, and other public utility property. In 1922 the plaintiff's valuation was the same, and other public utility property about the same, but the town site was dropped from $1,154 to $440, and farm and other local property from $42,989 to $21,805, thus making the plaintiff's percentage of the tax-bearing valuation still greater. And, as throwing some light on the character of the land embraced in the district, the purpose for which it is used, and its promise of either passenger business or freight, it is to be added that all of the so-called farm lands privately owned are classified by the assessing officers of the county as either 'grazing' or 'waste,' with a valuation on the former of $5 per acre in 1921, and $2 per acre in 1922, and on the latter of $1 per acre for each of the two years.

Corroborated by all the circumstances in evidence, the witnesses who testified upon the subject expressed the opinion that, except during the construction period, the road to be built would contribute nothing to the plaintiff's business, and it is apparent that in the long run, being parallel with plaintiff's track, and a part of a through highway, it will have a tendency to divert to power-driven vehicles both passenger and truck business which otherwise the plaintiff would get. In short, it is thought to be clear that the plaintiff can expect no net benefit from this public work, which is to cost $90,000, and of which amount, in all human probability, it will have to pay 95 per cent., or over $85,000, if the proposed bonds are issued.

Turning now, to the facts in another aspect of the case. Under the law (Compiled Statutes of Idaho, Sec. 1480 et seq.), the formation of a highway district must in the first instance be 'proposed' by at least 50 landowners within the district; but under the provisions of section 1502, already referred to, a 'good roads district,' created under a different statute, may be converted into a highway district upon the vote of a majority of the qualified electors therein voting on the question at an election therefor,...