Toledo, A.A. & N.M. Ry. Co. v. Detroit, L. & N. Ry. Co.

• Decision Date: 07 October 1886
• Citation: 62 Mich. 564,29 N.W. 500
• Parties: TOLEDO, A.A. & N.M. RY. CO. v. DETROIT, L. & N.R. CO. and others.
• Court: Michigan Supreme Court

29 N.W. 500

62 Mich. 564

TOLEDO, A.A. & N.M. RY. CO. v. DETROIT, L. & N.R. CO. and others.

Supreme Court of Michigan

October 7, 1886

Certiorari to Livingston probate court.

Luke S. Montague, for petitioner.

Charles B. Lothrop, for respondents and appellants.

SHERWOOD, J.

This case is certiorari to the probate court of the county of Livingston, to condemn lands for a right of way for the railroad of the petitioner; the lands sought to be condemned being the respondents' right of way, and enough thereof to allow the petitioner to cross the same with its right of way and track.

The respondents had the proper notice of the pendency of the petition, and, at the time fixed for hearing, appeared before the probate court, and the Detroit, Lansing & Northern Railroad Company, by its attorney, moved to quash and dismiss the proceedings for certain reasons then stated in writing and filed with the court. The motion was overruled. The respondent company thereupon filed its answer to the petition, showing why it should not be granted, which was also overruled by the court; and commissioners, under the statute, were appointed, who met, and, after taking testimony in the case, and inspecting the premises, found and reported to the court that it was necessary for the petitioner to take the said real estate for public use, viz., for the use of its railroad for a right of way and crossing, and the damages and compensation to be made therefor; which report, on motion was confirmed, against the objections of counsel for respondents written and filed in the case, on the thirteenth day of December, 1885.

The land described and condemned in the petition under the order of the court was a part of the respondent company's right of way, and at a place where the respondent's track was built upon an embankment 14 feet above the general level of the ground.

The proceedings in the probate court are brought before us for review by writ of certiorari. Two main grounds are relied upon by respondents' counsel to show that these proceedings cannot be sustained. The first is that the probate court acquired no jurisdiction under the petition and, second, the commissioners erred in their measure of damages and compensation.

Section 3331, How.St., is as follows: "In case any railroad company is unable to agree for the purchase of any real estate, property, or franchises required for the purpose of its incorporation, it shall have the right to acquire the title to the same in the manner and by the special proceedings prescribed in this act; but there shall be no power, except for crossing, to take the track or right of way of any other railroad company, except as hereinafter provided."

Section 3323, How St., it being section 9 in the original act contains nine subdivisions in describing the general powers and stating the liabilities and restrictions of railroad companies; and the sixth subdivision, in mentioning the powers, says the company is authorized "to cross, join, and unite its railroad with any other railroad now or hereafter constructed, under any law whatever, at any point on its route, and upon the grounds of such other railroad now or hereafter constructed, with the necessary turnouts, sidings, and switches, and other accommodations and conveniences in furtherance of the objects of its connections, and to make all such business arrangements as said companies may agree upon; and every company whose railroad shall be intersected by any other railroad shall unite with the owners of such other railroads in forming such intersections and connections, and grant facilities for the same, as hereinafter provided."

Section 36 of the general railroad law of 1873, it being section 3350 of Howell's Statutes, provided, if any railroad desired to make a crossing of another, a written notice was to be given to the superintendent of the latter to that effect, and, at the end of 10 days thereafter, the crossing could be made by the former, but without expense to the company whose road was crossed, and, after the crossing was made, the future expense of maintenance was to be borne equally by the companies; and if, after the crossing was made, the companies could not agree as to the compensation the company should have whose road had been constructed across the other, condemnation proceedings could be had to ascertain such compensation, which could not, in any case, exceed the value of the land.

This section of the statute fell under the condemnation of this court in the case of Grand Rapids, N. & L.S.R. Co. v. Grand Rapids & I.R. Co., 35 Mich. 265. Mr. Justice MARSTON, in giving the opinion of the court in that case, uses the following very forcible language, in speaking of the character and property right of the company whose road was to be crossed: "A repeal of the law under which the corporation was organized would not vest the title to its property in the public. In so far as the corporation is a common carrier, the legislature has undoubted powers to control and regulate it; but, in so far as its property is concerned, property taken by it for use in the building and operating its road, so long at least as such property is used by the corporation for such purposes, is as sacredly guarded and protected under our constitution, and is as much beyond the reach or power of the legislature, as is the property of an individual. Whatever the right or title of the corporation may be in such lands,--whether a mere earnest, or something greater; whether it may by some be considered public property, and by others private; call it by what name we will,--practically, in order for the company to fully enjoy its rights therein, the use must not only be permanent in its nature, at least so long as the road is operated, but it must be exclusive. From the very nature of the construction and operation of railroads, the public cannot use their road in the usual or ordinary manner of using a common public highway. Neither the state, nor any of its departments or municipalities, have or claim any interest in the property or franchises of the company. They neither pay nor contribute towards the purchase of the right of way, or to keeping it in proper repairs afterwards. All this is done by the company itself, and through its efforts, and the right thus acquired and paid for by the company is as much its property, and of value to it, as would be a like right or interest if owned by an individual. In justice, therefore, the corporation should have as clear a right to compensation for injury sustained, in consequence of an appropriation or use of its property by another without its consent, as an individual would."

If this is sound doctrine,--and I recognize it as such,--then the same legal proceedings must be had in this case as in the condemnation of private property for public purposes in other cases. Impressed, undoubtedly, with this view of the case, the legislature, in 1883, amended the section under which the decision I have first quoted from was made. The section, as amended, will be found in the margin, and under which the petitioner has sought to bring the proceedings in this case. ^[1]

Has the petitioner done so? and, if it has, is the section of the law proceeded under, as it now stands, constitutional? As we have shown, it is no longer in doubt in this state, if it ever was, that the property of a railroad company may be taken for public use, whenever the necessities of the public require, to an extent not absolutely necessary to successfully carry out the object and purposes of the franchise granted to the company, and which are in their nature public; and the land occupied by the company as its right of way may be taken by the state under its power of eminent domain, subject to the single limitation mentioned, to the same extent as the land of any private citizen, for either the use of another railway company, or for a public highway. In re Rochester Water Com'rs, 66 N.Y. 418; In re Boston & A.R. Co., 53 N.Y. 574.

The section of the amendment of 1883 we are now called upon to consider is numbered, as in the old statute, 36. It provides that after the company desiring to make the crossing of another company's right of way has secured the right, either by purchase or condemnation, it shall notify the other company of a time and place when and where it desires to make the connection and crossing; and if the two companies cannot agree as to the manner of making the crossing, whether at grade or above or under the track crossed, then the matter shall be left to the decision of the board consisting of the attorney general, secretary of state, and railroad commissioner, and who shall also determine the cost each company shall pay for making and maintaining the same. The proportion, however, for maintaining may be subsequently reviewed and modified by the board upon the application of either company. It will be noticed the mode and manner of condemnation are the same as in other cases, when resort to such proceedings is to be had.

The necessity of taking and using the real estate, property, and franchise required, and the damages or compensation which ought to be made, in a case of condemnation, must be determined by three commissioners or a jury. This may be done under the provisions of this section. Article 18, � 2 Const.; Laws 1883, � 36. The section requires the crossing road to be...