State ex rel. Little v. Dodge City, M. & T. Ry. Co.

• Decision Date: 05 May 1894
• Parties: STATE ex rel. LITTLE, Atty. Gen., v. DODGE CITY, M. & T. RY. CO. et al.
• Court: Kansas Supreme Court

36 P. 755

53 Kan. 329

STATE ex rel. LITTLE, Atty. Gen., v. DODGE CITY, M. & T. RY. CO. et al.

Supreme Court of Kansas

May 5, 1894

Syllabus

Where a railway company, owning a short line of railroad of 26 miles only, is wholly insolvent, and such company has no cars or engines with which to operate it, and no funds or property to be applied for the payment of the expenses of the company of the road, and the use of the road has been abandoned for several months, and the road cannot be operated, except at a great loss, by any corporation or person, not taking into account the repairs of the road and the taxes thereon, the supreme court, having some discretion in the granting of a writ of mandamus, will not compel, by a peremptory writ, the railway company to replace or put into repair its track, a part of which has been torn up, as such an order would be useless or futile, and of no public benefit.

Mandamus by the state of Kansas, on the relation of John T. Little attorney general, against the Dodge city, Montezuma &amp Trinidad Railway Company and others. Writ denied.

This action was commenced in this court on January 4th of the present year, to compel the Dodge City, Montezuma & Trinidad Railway Company and the other defendants to repair and relay certain portions of the track and roadbed of the railway company in the counties of Gray and Ford, in this state. It appears from the evidence presented upon the trial that on May 21, 1887, the Dodge City, Montezuma & Trinidad Railway Company was chartered, to exist 99 years, and organized under the laws of the state, with the declared intention of constructing a line of railway from Dodge City, in this state, to Trinidad, Colo. The Montezuma Company, during the year 1888, constructed its line of road from Dodge city, in a south-westerly direction, to the town of Montezuma, in Gray county,-a distance of 26 miles. At no time has the road been extended further. The Montezuma Company never equipped its road with cars or engines. From the time of completion of the road until May, 1893, it was operated by the Montezuma Company, by an arrangement with the Chicago, Rock Island &amp Pacific Railway Company by which the latter company was to run its trains over the road at a cost of from $18 to $26 per round trip. During the year 1888, all of the capital stock of the company, amounting to 40,000 shares, of $50 each, was issued, and A. T. Soule, of Rochester, N. Y., became the owner of 38,000 shares, which he owned until the time of his death, in 1890, since which time his son, Wilson Soule, has been the owner thereof; and Fairview township became the owner of 278 shares of the stock, and the remaining 1,722 shares have been owned and held, from that time until the present, by other individuals. The total receipts from sale of stock by the Montezuma Company, from its organization to the present time, are $63,900. Fairview township, in Ford county, through which the road runs, in September, 1888 became the owner of 278 shares of the stock of the Montezuma Company, and has ever since been the owner thereof, by issuing its bonds in the sum of $13,900 to the Montezuma Company, on the completion of the road through the township, which bonds are outstanding and unpaid. No other aid was furnished the Montezuma Company, except donations by citizens of Dodge City in the amount of $800. The company exercised the right of eminent domain along the entire line of its road. The cost of the construction of the road was $266,000. In 1888 the Montezuma Company became indebted to A. T. Soule for $194,333.55, which was used in the construction of the road; and afterwards, in 1889, 1890, and 1891, it became further indebted to A. T. Soule and Wilson Soule in the sum of $38,000. These sums of money were furnished at various times, for which the company gave to Soule its 19 promissory notes, aggregating these sums; and the notes not being paid on the 7th day of October, 1891, the Montezuma Company, to secure the payment of the same to Wilson Soule, gave him its mortgage upon all its property, described as follows: “All the line of railway owned by the party of the first part which extends from Dodge City Kas., to Montezuma, Kas., including the roadbed, ties, and rails thereon, together with all side tracks, depots, and appurtenances thereto in anywise appertaining or belonging; to have and to hold the same, together with all and singular the tenements and hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever.” On the 19th day of January, 1893, by proceedings in the district court of Ford county, Wilson Soule obtained a judgment against the Montezuma Company for the amounts secured by the mortgage, and a decree foreclosing the mortgage, and an order for the sale of the property, which order was executed by a receiver appointed by the court. The sale was had on the 5th day of September, 1893, and the defendant E. F. Kellogg, who purchased for the defendant Wilson Soule, became the purchaser; and afterwards, on the 20th day of September, 1893, a deed was made by the receiver, under the order of the court, of the property to E. F. Kellogg, who took the same in trust for Wilson Soule, the real purchaser. On the 2d day of December, 1893, Wilson Soule sold the superstructure of the road to the Block-Pollak Iron Company, with the understanding that the Block-Pollak Iron Company would remove the same from the roadbed. In the months of December and January, work being carried on until the 10th of January, the Block-Pollak Iron Company, through its agents and employees, G. T. Wisewell, Harry Benjamin, and others, tore up and removed 16 miles of the superstructure of the road, commencing at Montezuma, and extending east to a point two miles within Fairview township, Ford county, since which time no effort has been made to remove the road, except on January 20th a portion of the spikes on three-fourths of a mile of track were drawn, and on January 25th a large number of teams were hired to haul rails, but were not used, and on January 26th 12 men pulled spikes for half the day. No part of the superstructure of the road has ever been repaired. Before any of the road was taken up, about one-third of the ties were in a defective condition, and, if the road were to be used, ought to have been changed atonce; the other two-thirds ought to be changed within the next three years. The estimated cost of replacing one-third of the ties would be $15,000. In taking up the road the ties were offered for two cents to the farmers for wood, but no buyers were found, and they were left upon the ground. At the time the road was constructed, five stations were established, namely, Dodge City and Grand View, in Ford county, and Ensign, Macomb, and Montezuma, in Gray county. At that time Montezuma had about seventy-five...