Union Lime Co. v. R.R. Comm'n of Wis.

• Decision Date: 10 January 1911
• Citation: 129 N.W. 605,144 Wis. 523
• Parties: UNION LIME CO. ET AL. v. RAILROAD COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

144 Wis. 523

129 N.W. 605

UNION LIME CO. ET AL.

v.RAILROAD COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Union Lime Company and another against the Railroad Commission of Wisconsin and another. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

Siebecker and Barnes, JJ., dissenting.

The plaintiffs and the defendant Eden Independent Lime & Stone Company are the owners of parcels of land in section 6, town 14, range 18, in Fond du Lac county. The Nast Company owns the southeast quarter of the southeast quarter of said section and also the east two acres of the southwest quarter of the southeast quarter. The Union Lime Company owns the southwest quarter of the southeast quarter, except the east two acres thereof. The Eden Company owns 23 acres, parcel of the southeast quarter of the southwest quarter of said section. The lands of the parties thus lie in a line east and west upon the south side of section 6.

The Nast Company and its predecessors in title have for 30 years past operated, and still operate, extensive lime kilns and a stone-crushing plant upon its premises. For a similar time the Union Company and its predecessors in title have also operated and still operate upon its premises extensive lime-burning and stone-crushing plants. The Eden Company was organized in the spring of 1909 and has partially completed a single lime kiln on its premises, but has never conducted any business thereon. In 1880 a spur or side track was built by the Chicago & Northwestern Union Railroad Company, the predecessor of the Chicago & Northwestern Railway Company, extending from a point on its main line about one mile north of Eden Station in a southwesterly direction across the land of the Nast Company and for a distance by the course of the track of about 75 rods upon the premises of the Union Company, terminating at a point about 185 feet east of the west line of the Union Company's land. From time to time since 1880, branches or side tracks from this main spur have been built and all of these tracks have always been used exclusively for the purpose of affording switching facilities to the plants of the plaintiffs. The map accompanying this statement of facts shows the tracks upon the land of the Union Company and the proposed extension of one of these tracks to and upon the land of the Eden Company asked for by the latter in the proceedings before the Railroad Commission. The premises of the Nast Company lie to the east of those shown upon the map and upon them are also numerous tracks.

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In June, 1909, the Eden Company, being about to erect a lime kiln, applied to the Chicago & Northwestern Railway Company for a side track connecting with one of the tracks upon the Union Company's property. The railway company claimed that its rights in the trackage serving the Union Company did not permit it to make any extension for the purpose of serving others, without the consent of the Union Company. In August, 1909, the Eden Company filed a petition with the Railroad Commission praying for the extension of the track marked C on the map referred to, from the terminus thereof to the site of the Eden Company's lime kiln, alleging that it was entitled to have such extension made under chapter 481, Laws 1909. Thereupon notice of the filing of this petition fixing a date for the hearing thereon was served upon the railway company, but no notice was given to plaintiffs, and they were unaware of the proceedings until the making of an order by the Railroad Commission therein. A hearing being had before the Railroad Commission on September 16, 1909, at which the railway company made no opposition to the extension of the track prayed for, an order was entered by the Commission directing the building of the track as prayed along the line indicated upon the map. Thereafter, and on October 29, 1909, the plaintiffs filed with the Railroad Commission a petition asking that the aforesaid order be vacated, and that they be given leave to intervene in the proceedings. This application being granted, plaintiffs filed an answer alleging that the extension of the track as directed in the previous order of the Commission would greatly injure their property and interfere with their business, and prayed that said order might be rescinded, and that if the Commission should require a spur track to be constructed, that the same be ordered built so as not to cause unnecessary and unreasonable damage to their property. A second hearing was had before the Commission on December 17, 1909, at which a considerable amount of testimony was taken and in the course of which the president of the Eden Company testified that his company was able and willing to pay the expense of constructing a track from some point on the main spur between the points marked X and Y on the map, thence between the track marked C and the Union Company's office building, to and upon the Eden Company's land. March 24, 1910, the Railroad Commission made an order directing the construction of a track upon the line last described, but not providing for payment by the Eden Company of the cost of such track. Upon the promulgation of this order, the railway company called the attention of the Railroad Commission to the fact that no provision was made therein for the payment of cost of the track ordered, and that the company had no right of way over the line proposed. No protest or objection was made by plaintiffs to the Commission's order of March 24th, and there was no further hearing or proceedings before the Commission, but on April 1, 1910, the Commission, without notice to any of the parties, made a third order requiring the railway company to extend the track marked D upon the map to and along the kiln shed of the Eden Company. The order further provided that “thirty (30) days is deemed a reasonable period of time within which to comply with the provisions of this order.”

On April 21, 1910, this action was commenced against the Railroad Commission to vacate and set aside the third and last order of the Commission and to enjoin the execution thereof. On the trial, May 23, 1910, the Eden Company asked leave to intervene and become a party defendant, which leave was granted over plaintiffs' objection. The trial court held that section 1797--11m confers upon the Railroad Commission power to compel construction of spur tracks to such industries as that proposed to be operated by the Eden Company and, as an incident, to compel the railway company to acquire the necessary right of way for such spur; that if the company has an easement across the property of the Union Company, the order of the Railroad Commission does not necessitate the exercise of the power of eminent domain; that certain papers executed April 3, 1880, confer upon the railway company a right of way over the Union Company's land; that this right of way was not limited to the use of the quarries of the Union Company; that therefore the question whether section 1797--11m contravenes the state or federal Constitution was not involved, and that the order of the Railroad Commission was lawful and not unreasonable. Judgment dismissing the complaint and for costs was entered June 7, 1910, from which this appeal is taken.

Lines, Spooner, Ellis & Quarles (George Lines, of counsel), for appellants.

F. L. Gilbert, Atty. Gen., Russell Jackson, Deputy Atty. Gen., and Ecke & Hughes, for respondents.

VINJE, J. (after stating the facts as above).

The trial court expressly stated in its decision that it did not pass upon the constitutionality of section 1797--11m (chapter 481, Laws 1909), inasmuch as it held the railroad company had valid easements across the lands over which the spur track was to be built; and hence it was not necessary for it to invoke the power of eminent domain granted by the statute. Counsel for defendants suggest that this court may likewise dispose of the case without passing upon the constitutionality of said section. It appears, however, that the proceedings were in terms instituted pursuant thereto, and that the Railroad Commission acted under it. That being so, it is not perceived how its acts thereunder can be valid if the statute itself is unconstitutional. Indeed, the trial court, by its judgment dismissing the action, sustainedthe validity of the proceedings and in effect held it constitutional. The fact that the Railroad Commission was not required to exercise all the powers conferred upon it by the statute did not obviate the necessity of passing upon its constitutionality, since the powers it did exercise were derived therefrom. So the case directly involved the constitutionality of section 1797--11m. That section reads as follows:

“(1) Every railroad shall acquire the necessary rights of way for, and shall construct, connect, maintain and operate a reasonably adequate and suitable spur track, whenever such spur track does not necessarily exceed two miles in length, is practically indispensable to the successful operation of any existing or proposed mill, elevator, storehouse, warehouse, dock, wharf, pier, manufacturing establishment, lumber yard, coal dock or other industry or enterprise and its construction and operation is not unusually unsafe and dangerous, and is not unreasonably harmful to public interest.

(2) Such railroad may require the person or persons, firm, corporation or association primarily to be served thereby, to pay the legitimate cost and expense of acquiring, by condemnation or purchase, the necessary rights of way for such spur track, and of constructing the same, as shall be determined in separate items by the commission, in which case the total estimated cost thereof shall be deposited with the railroad before the railroad shall be required to incur any expense whatever therefor; provided, however, that when any such person, firm,...