The Atchison v. The Kansas City

• Decision Date: 10 October 1903
• Docket Number: 12,814
• Citation: 70 P. 939,67 Kan. 569
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. THE KANSAS CITY, MEXICO & ORIENT RAILWAY COMPANY et al

70 P. 939

67 Kan. 569

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. THE KANSAS CITY, MEXICO & ORIENT RAILWAY COMPANY et al

No. 12,814

Supreme Court of Kansas

October 10, 1903

December 6, 1902.

Decided July, 1903.

Error from Lyon district court; DENNIS MADDEN, judge. First opinion filed December 6, 1902. Affirmed. Rehearing granted January 5, 1903. Second

STATEMENT.

THE Atchison, Topeka & Santa Fe Railway Company commenced an action against the Kansas City, Mexico & Orient Railway Company to enjoin the latter from appropriating for right-of-way purposes a part of the Santa Fe company's real estate. The petition alleged that the plaintiff was a corporation under the laws of the state of Kansas, engaged in the operation of a line of railroad, and in the business of a common carrier, and as such the owner of extensive track and roundhouse and other railroad facilities constructed on real estate in and near the city of Emporia, which it had acquired for railway purposes; that the lands so acquired were all necessary for the proper fulfillment of the public duties pertaining to plaintiff's business as a common carrier were all actually devoted to such uses, and that their condemnation by the Orient company would interfere with its round house, storage tracks, and other property, to its great and irreparable injury. The petition contained a further allegation, as follows:

"The plaintiff further says that the defendant, the Kansas City Mexico & Orient Railway Company, has never by a proper exercise of the rights of eminent domain under the laws of the state of Kansas acquired any right to go upon the lands of said plaintiff company hereinbefore described, or any of them, or to cross, intersect, or unite, or in any manner interfere with the tracks, roundhouses, buildings and other property of the plaintiff located upon the premises owned by said plaintiff and hereinbefore described, or any part thereof."

The answer pleaded the incorporation of the defendant as a railway company under the laws of Kansas, and set forth a condemnation of the land described in the petition for railway purposes, under the general law relating to that subject, and the assessment of damages therefor by commissioners appointed by the judge of the district court of the proper county. It denied that the land taken was acquired for railway purposes; that it was necessary for such uses, or that it was devoted in good faith to such uses. It further charged a vexatious obstruction of the Orient company in its efforts to establish a line of railroad by the hasty building of useless tracks from worn-out material, athwart the course of the Orient road through land unused by the Santa Fe company for many years, and prayed for an injunction against interference and molestation. The reply denied the allegations of the answer inconsistent with those of the petition.

On the trial a large volume of evidence was produced tending in some measure to sustain the claims of each contestant. It did appear that the proposed right of way of the Orient company included a coal-trestle and certain tracks adjacent to the roundhouse of the Santa Fe company, previously established actually in use, and essential to its business. The Orient company, however, disclaimed any intention of obstructing or interfering with such property, and an injunction was granted against its so doing. The further restraint of the Orient company was denied, and the Santa Fe company was enjoined from interfering with the Orient company in its appropriation of all other land involved, which consisted of three portions, aggregating about two acres, cut from extremities of the Santa Fe company's tract. The Santa Fe company asks for a reversal of the judgment enjoining it and refusing further relief against the defendant company.

The relation of the Orient company's proposed right of way to the Santa Fe company's property, excepting one of the small portions mentioned, may be seen from the following plat.

[SEE DIAGRAM IN ORIGINAL]

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Condemnation of Railroad Property. One railway corporation may, under the general statutes of eminent domain, condemn for its right of way real estate belonging to another railway corporation not in actual and necessary use for railway purposes.

2. RAILROADS--Jurisdiction of Board of Railroad Commissioners. Section 14, chapter 286, Laws of 1901 (Gen. Stat. 1901, § 5974), confers jurisdiction upon the board of railroad commissioners only in cases of the crossing of the tracks of one railroad by those of another and the uniting of the tracks of two railway companies, upon the grounds of one of them. It does not extend such jurisdiction to the impinging of the right of way of one railway upon the grounds of another in such manner as not to involve an intersection or union of tracks, or to the taking of the grounds of one railway for the right of way of another to the entire exclusion of the established road from the territory taken.

Robert Dunlap, and A. A. Hurd, for plaintiff in error.

J. McD. Trimble, John A. Eaton, and John G. Egan, for defendants in error.

BURCH J. JOHNSTON, J., DOSTER, C. J., SMITH, CUNNINGHAM, GREENE, POLLOCK, JJ., concurring.

OPINION

BURCH, J:

The questions arising from the record in this cause relate to the right of one railway company to take the land of another for a right of way, and their solution depends upon the construction to be given to the statutes granting the power of eminent domain to railway corporations. Such statutes are sections 47, 81, and 87, chapter 23, General Statutes of 1868, and section 14, chapter 286, Laws of 1901 (Gen. Stat. 1901, § 5974), which reads as follows:

"Any railroad company authorized to operate a railroad in this state desiring to cross or unite its track with any other railroad upon the grounds of such other railway corporation shall make application in writing to the board of railroad commissioners, stating the place of crossing or intersection; whereupon the board of railroad commissioners shall fix a day for the hearing of such application, and notify the railway corporations interested, at which time, unless further time be granted by the board, the corporations interested shall be heard in regard to the necessity, place, manner and time of such crossing or connection; and upon such hearing either party or the board may call and examine witnesses in regard to the matter; and the board shall, after such hearing and a personal examination of the locality where a crossing or connection is desired, determine whether there is a necessity for such crossing or not, and, if so, the place thereof, whether it shall be over or under the existing railroad, or at grade, and in other respects the manner of such crossing and the terms upon which the same shall be made and maintained; provided, that no crossing shall be made through the yards or over the switches or side-tracks of any existing railroad, if a crossing can be effected at any other place that is practicable."

Plaintiff in error contends that the Orient company should have proceeded in its attempted condemnation under the provisions of the act of 1901; that the board of railroad commissioners have special jurisdiction over cases of this character, and that the statute creating that tribunal supersedes all others relating to the same subject-matter. It will be observed, however, that section 14 of that act refers only to crossings of one railroad by another and to the uniting of tracks. A railway-crossing is said to be "an intersection of railway-tracks." (5 Cent. Dict. 4942.) The word "track," as applied to a railroad, is defined to be "the two continuous lines of rails on which railway-cars run" (6 Cent. Dict. 6413); and "to cross" means to pass from side to side of." (2 Cent. Dict. 1362.) In order, therefore, to unite tracks their rails must be joined, and one railroad cannot be said to cross another unless the rails of one extend over that rail of the other which is farthest from the side of approach. In this view, the phraseology of the law does not include the impinging of the right of way of one railroad upon the grounds of another in a manner not involving their tracks, and the broad construction necessary to sustain the claim of plaintiff in error is forbidden.

The sections of the act in juxtaposition with section 14, relating to switch connections and systems of interlocking or automatic signaling apparatus, further seem to some extent to confine the operation of the law within the limits stated.

But the crossings and connections provided for are to be upon the grounds of the railroad which is already established. Its proprietorship is not to be destroyed or its use of the place of contact cut off. Such, however, was not the purpose of the Orient company's proceeding. It sought no connection and desired no common crossing with the Santa Fe railway. It desired to condemn...