St. Louis & S. F. R. Co. v. Love
| Decision Date | 26 September 1911 |
| Parties | ST. LOUIS & S. F. R. CO. v. LOVE et al., Corporation Commission of Oklahoma. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The jurisdiction to open public highways and crossings over railway rights of way is vested in the local authorities, and not in the Corporation Commission of the state; and, where no highway or crossing has been lawfully established and opened over the right of way of a railroad, the said Commission has no jurisdiction to determine the character of the crossing to be provided, and require its installation, and, where in such a case it makes an order requiring a specific kind of crossing, jurisdiction is vested in this court to issue a writ of prohibition to prevent its enforcement.
Action by the St. Louis & San Francisco Railroad Company for a writ of prohibition against J. E. Love and others, Members of the Corporation Commission of the State of Oklahoma. Writ granted.
W. F Evans and R. A. Kleinschmidt, for plaintiff.
Charles West, Atty. Gen., for defendants.
This is an original action in this court for a writ of prohibition brought by plaintiff, one of the public service corporations doing business as a common carrier in the state, against the defendants, constituting the membership of the Corporation Commission. At some time, the date of which is not made to appear, the officers of Lynn Lane township, Tulsa county filed in the office of the said Commission, a complaint, alleging that plaintiff was operating a line of railroad within the state of Oklahoma which intersected one of the section lines running north and south within the said township. That the said line was by resolution of the said township board, on the 1st day of November, 1909, ordered opened and put in condition for public travel. That in furtherance of the said resolution one of the road overseers of the said township served upon said plaintiff company a notice in writing to construct and maintain a crossing over its right of way where the same was intersected by the section line; the notice being to the effect that the plaintiff should construct a crossing across that portion of its right of way over which the public highway runs on the section line (describing it), commanding it to maintain the same unobstructed and in good condition for the use of the public. The said petition then averted that, notwithstanding the notice, the company had neglected and refused to comply therewith, and that the highway was still unopened and obstructed by said railroad company. It was in the said complaint further represented that, owing to the elevation of the track, a grade crossing at that point would be difficult to construct and maintain, and that, owing to the height of the approaches, it would be a constant menace to the public welfare and safety. Further facts showing the desirability and necessity for the said crossing were also set forth. A day for the hearing of the petition was fixed, and evidence taken, in which the facts of the petition were sustained by the evidence, and on December 9, 1910, an order of the Corporation Commission was made, which provided that the company should construct a subway crossing at the intersection of its road with the said section line, and that the same should be constructed of such dimensions as might be determined adequate and safe by the said company; the plans and specifications therefor to be submitted to the Commission for approval. From this order the railway company sought to appeal to this court, which appeal, after being lodged herein, was, on May 9, 1911, upon due consideration, dismissed, for the reason that the order was one from which, under the law, no appeal would lie. Thereafter, and on May 23, 1911, plaintiff brought this action to secure a writ of prohibition, which it prayed should be directed to the defendants, commanding them to desist and refrain from any further proceedings looking to the carrying out of the said order.
Counsel for plaintiff rely upon two propositions, which may be stated as follows: First, that the Corporation Commission is without authority or jurisdiction to require the construction of the crossing mentioned in the order, for the reason that no road or highway has ever been legally opened or extended over plaintiff's right of way in which it is claimed plaintiff owns a fee-simple title; and, second, that the Corporation Commission has no authority to regulate the crossing of public highways and railroads.
The first proposition necessary for us to determine is, Was there in fact a public highway opened over and across plaintiff's right of way? If there was no such highway opened, the Corporation Commission could not, by the order requiring the company to construct an overhead crossing, compel the opening or the establishment of a highway. Illinois Central Ry. Co. v. State ex rel., 94 Miss. 759, 48 So. 561. The law on this subject is well stated by the Commission in its opinion rendered in Swarts et al. v. St. Louis & San Francisco Railroad Company (1st Annual Report, p. 127), wherein it is said: See, also, unpublished opinion of Corporation Commission in Cooper et al. v. C., R.I. & P. Ry. Co. We will therefore first determine the question of whether there was in fact an opened highway.
The plaintiff is the successor of the Atlantic & Pacific Railway Company, which secured its right of way by and under an act of Congress of July 27, 1866 (14 Stat. 294, c. 278), section 2 of which reads as follows:
One of the contentions of the Attorney General is that under this grant the railway company took its right of way subject to the implied, reserved power in Congress to require the allowance of free public highways over and across the right of way of any railroad subsequently constructed thereon; and this claim, it is contended, finds support in the provisions of an act of Congress of July 26, 1866 (14 Stat. 251, 253, c 262), providing that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted"; the contention being that, inasmuch as the act granting the franchise and right of way to the Atlantic & Pacific Railway Company was not adopted until the day after the adoption of the section to which reference has just been made, the company took its franchise and right of way subject to this provision, which reserved a right of way for the construction of highways over the railroad grant. After the acceptance of the grant and the construction of plaintiff's line of railway, Congress, on July 1, 1902, passed an act (Act July 1, 1902, c. 1375, 32 Stat. 716) entitled "An act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of townsites therein, and for other purposes," section 37 of which provided that "public highways of roads two rods in width, being one rod on each side of the section line, may be established along all section lines without any compensation being paid therefor, and all allottees, purchasers, and others shall take the title to such lands subject to this provision," and the claim is made that this act, in conjunction with the other, on becoming operative was self-executing, and established and opened over and across plaintiff's line of road a public highway. In these contentions we are unable to concur, for the courts appear to have uniformly held that section 8 of the act of July 26, 1866, supra, wherein Congress provided for a right of way over public lands for the construction of highways, amounted to an offer only on the part of the government of so much of the public lands as was necessary for the construction of highways, and hence, of course, did not in itself amount to a reservation in the grant which was made to this company of any land included within its right of way. The statute constituted a standing offer of a free right of way over the public domain which, as soon as accepted in some lawful manner by the agents of the public, or by the public itself, established a right to a highway; but prior thereto it simply amounted to a...
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