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not authorized to condemn land for the sole purpose of handling the freight of a private establishment. The fact, however, that an ordinary side track incidentally serves a private use is no valid objection to the condemnation of a strip of land therefor, if in addition to serving such use it is also necessary for the successful and convenient operation of the main line of the road.2

Land already used for a side track to a private establishment may be condemned by another company where the siding was not needed for general purposes, but was constructed merely to obstruct a rival road.3 In Illinois, it has been held that a railroad

Va.

der a proper construction of the law pany to another railroad company, upon they will receive; but they must not, which to lay a switch leading to a for their own gain and profit, be per- brick yard, and the construction of the mitted to take private property for switch was immediately begun. The private use." See also Valley Salt Co. switch was not needed for the general V. Brown, 7 W. 191.

purposes of the leasing company, nor 1. Chicago etc. R. Co. v. Wiltse, 116 was it ever completed as far as the Ill. .449; 24

Am. & Eng. R. Cas. brick vard. Held, that the occupation 261, holding that where the track for of the premises under the lease was not which the company sought to condemn for such a public use as would bar cona right of way, was a branch road in- demnation by the former railroad comtended for the private use of handling pany. the freight of certain brick works, the The court say: “Lands held by a condemnation of property for such use corporation, but not used for or neceswas unauthorized by law, and that the sary to a public purpose, but simply as proceedings should have been dis- a proprietor, and for any private purmissed as soon as the purpose became pose to which they may be lawfulls apparent.

applied, may be taken as if held by an In Sholl v. German Coal Co., 118 111. individual owner. In re Commissioniers, 427, it was held that the use of a strip 66 N. Y. 413. The need of the land of land by a coal company, upon which sought in aid of collateral enterprises to construct a tramway leading from remotely connected with the running or the coal works to a railroad track, is a operating of the road will not justify private use, and such strip cannot be an assertion of the right of eminent condemned, under the Illinois eminent domain. Rensselaer & S. R. Co. u. domain act, for such use.

Davis, 43 N. Y. 137. The whole subIn State v. Railway Co., 40 Ohio St. ject has been recently and fully dis504, it was held that where a railway cussed, in Re Niagara Falls & N. R.. corporation, for a period of five years, Co., 108 N. Y. 375; 33 Am. & Eng. R. fails to construct the line of railroad Cas. 99, and the limits of judicial named in its charter, but condemns control defined. In the case at bar private property, and constructs a rail- the lease taken was brief and temporary; road wholly unsuited to the wants of the lessor, a complaining land owner, the public, and for the benefit only of and the lessee watching a competitor; coal mines, owned and operated by the the building of the switch so swift and principal corporators and stockholders prompt as to indicate a design of obof such railroad company, it is a misuse struction; the purpose asserted, that of of its corporate powers, franchises and convenience to the owners of the brick privileges.

yard, in which no public use was in2. South Chicago R. Co. v'. Dix, 109 volved; even that purpose inchoate and Ill. 237; 17 Am. & Eng. R. Cas. 157. barred by the refusal of Mrs. Emery,

3. In Rochester & H. & L. R. Co. v. and the brick yard not even reached, Bahcock, 110 N. Y. 119, a railroad com- the switch needless for the general purpany filed its map and profile for a poses of the company, and no such exright of way, and served notice thereof pected use asserted; and the occupation on an owner of land over which it for private gain, and for individual conpassed. Soon thereafter the owner venience. A switch may be needed for leased the right of way on the premises the storage of cars, or making up of sought to be taken by the railroad com- trains, or for access to docks, ware

company may be compelled by mandamus to restore connection with a side track leading to a coal bank from its main track which it has wrongfully severed. 1

IV. Switches and Sidings.—The grant of power to locate and construct a railway unquestionably carries with it the right to construct turnouts, sidings, and all works and appendages usual in

houses and elevators open to public use, it was held that where parties living and resulting in public accommodation; adjacent to a railroad track made the but nothing of the kind is here pre- grade and furnished the cross ties for a tended, and it is even doubtful whether switch for neighborhood convenience its sole utility to the builders was any- under a contract with the railroad comthing other than as an obstruction." pany that the switch should remain

1. Chicago & A. R. Co. v. Suffern permanently, etc., held that after the (Ill. 1889), 38 Am. & Eng. R. Cas. 508. road and franchises of the contracting In this case it was held that the pro- company had been sold under a decree vision of the Illinois constitution that of foreclosure, the corporation pur“all railroad companies shall permit chasing the same might remove the connections to be made with their track switch, unless it assumed the original so that

any public warehouse, contract under section 3 of the railroad coal bank or coal yard may be reached act of March 3rd, 1865. by the cars of said railroad” is abso- Contract Specific Performance. — In lute and peremptory; and if a railroad consideration of certain land owners company wrongfully severs the con- obtaining from the admiralty a waiver nection of a switch leading to a coal of an obligation imposed upon a railbank, the legal obligation of the com- way company by their act to construct pany to restore such connection may be certain works, and upon conveyance of enforced by mandamus.

the necessary land by the land owners, The following points were also de- the railway company entered into an cided: The fact that the proprietor of agreement with them to make a cara coal mine, which already had a switch riage road between certain specified connecting with a railroad, had per- points, and also to make and maintain mitted another company to construct a a wharf for loading and discharging switch on its road to the coal bank, and vessels at a specified place, of a stiputhat the two switches were connected lated length, and of a suitable and conat the weighing scales, does not, in the venient height. The obligation imabsence of evidence tending to show that posed upon the company by their the cars of the second company were had been waived by the adpushed from the weighing scales upon miralty; and the land required had the line of the first company, or that been conveyed the

company, the first company was in any way in- who had commenced but had not finjured by the construction of the second ished the road, and had not switch, justify the first company in dis- menced the whari. Held, on demurrer connecting its switch. A plea which by the company to a bill by the landalleges that the manager of the res- owners for specific performance of the pondent, in the exercise of his discre- agreement, 1st, that having obtained the tion, determined that the use of the benefit of the agreement by being connecting switches was unsafe and im- thereby released from an onerous obliprudent, is insufficient if it fails to set up gation, and allowed to substitute somefacts showing wherein the use would be thing more easy of performance, the unsafe. One railroad company is not jus- company would not be allowed to tified in disconnecting a switch leading evade the agreement; 2nd, that the agreeto a coal mine, and refusing to permit the ment was not ultra vires, and might be owners of the coal mine to ship coal enforced against them. Wilson v. Furover its road because such owners also ness R. Co., L. R., 9 Eq. 28. ship coal from the same mine over the Public Highway.-A private switch road of another railroad company which from a railroad to coal lands, which is is also connected with the mine by a not owned by the railway company, but switch.

by individuals for their own private In Smith v. Indianapolis P. & C. R. use, is not a public highway within the Co., 1 Indianapolis Supr. Ct. Rep. 88, meaning of g 12, art. 11, of the Illinois 12 C. of L.-60

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the convenient operation of a railway. A railroad without switches, sidings and turnouts would be useless in a great measure.

constitution, and therefore not free to necessary for the successful operation all persons for the transportation of of its road. The act requires the pertheir persons and property thereon; sons incorporating a company to name that section applies only to public rail- the places from which and to which it roads. Koelle r'. Knecht, 99 III. 396. is intended to construct the proposed

1. Philadelphia W.& B.R. Co.v. Will- railway, but no limitation is laid down iams (Pa.), 4 P. F. S. 103; Getz Appeal, as to the places where switches, turnouts 65 Pa. St. 1; 3 Am. & Eng. R. Cas. 186; or sidetracks shall be constructed. Chicago, B. & Q. R. Co. v. Wilson, 17 Where a railroad company had a 111. 125; In re New York Cent. etc. R. side track for many years before conCo., 67 Barb. (N. Y.) 426; Toledo etc. necting its main track with a public R. Co. 7. Daniels,

Ohio St. 390.

warehouse and elevator a town over The A., T. & S. F. R. Co., having the land of another, but without having completed the line of road author- the right of way therefor, except by the ized by its charter, and having once mere consent or licence of the owner, condemned land in the city of Atchison, it was held that the company had the for depots, side tracks, etc., and needed right to institute proceedings. to conmore room in said city for the transac- demn the land over which such branch tion of its business, instituted proceed- ran for right of way. Fisher v. Chicago ings for condemning more land. Held, & S. R. Co., 104 Ill. 323; 10 Am. & that such proceedings could be main- Eng. R. Cas. 14. tained, and that under the statute the A railroad corporation may lay side right of eminent domain was not ter- tracks for its convenience over any minated by the completion of the road land it may own in fee, or land of indi. or exhausted by a single exercise of the viduals giving legal consent thereto if power. Central Branch U.P.R. Co. v. no public interest or private right is Atchison etc. R. Co., 29 Kan. 669; 5 effected. Bangor etc. R. Co. v. Smith, Am. & Eng. R. Cas. 389.

47 Me. 34. In Cleveland & P. R. Co. v. Speer, Public Use.- Where the record shows 6 P. F. S. (Pa.) 335, it was said: ""By that the construction of branches and the express words of this charter, the spur tracks laid down on the map is power is conferred of making as many essential to any successíul operation of sets of tracks as are deemed necessary. the petitioner's road, it must be held to But if this power were not expressed, be necessary to public use. Toledo, S. it is clearly to be inferred from the gen- & M. R. Co. '. East Saginaw etc. R. eral powers conferred and the essential Co. (Mich. 1888), 36 Am. & Eng. R. purposes of the grant. A power to build side tracks is essential to the pur- Railroad in Street.-A land owner pose and use of the road.

who had released to railroad company And in Black v. Philadelphia & R. the right to occupy a street for one R. Co., 8 P. F. S (Pa.) 252, it was said track has been held not entitled to enthat "the word 'railroad' ex vi termini, join the construction of a switch by includes sidings."

laying an additional rail on the projectIn New York Cent. & H. R. Co. v. ing ends of the ties on which main track Metropolitan G. L. Co., 5 Hun (N. Y.) was laid. Indianapolis etc. R. Co. v. 201; 6 ib. 1o9; 63 N. Y. 326, it was Calvert, 110 Ind. 555; 32 Am. & Eng. held that a railway company may take R. Cas. 170. lands, under the general law, for the A railroad company having the right purpose of laying tracks from its main to extend a switch track into a highway line to its stock yards.

is bound to use such track in such manIn South Chicago R. Co. v. Dix, 109 ner as not unnecessarily to interfere I11. 237; 17 Am. & Eng. R. Cas. 157, it with public travel. Bussian v. Milwas held that a railway corporation. waukee etc. R. Co., 56 Wis. 325; 10 organized under the Illinois general Am. & Eng. Cas. 716. act of 1872, and the amendment thereto Where the right to lay a railroad of 1877, is expressly empowered to track in a street is limited to thirty condemn land for the purposes of feet in the center, a railroad company switches, turnouts and side tracks, when may condemn for a side track which

Cas. 553.

And the fact that the company, in organizing, names the termini of the proposed road, as required by the act of incorporation, does not restrict its right to condemn land for switches, turnouts and side tracks.1

V. Carriers.- Wherever a railroad company is invested with power to construct branches to its main track, and when this is done for the purpose of general transportation, the road will become a common carrier as to such branches, and subject to the law governing carriers; but the question whether such branch has been used for general transportation, so as to make the company liable as a common carrier, is one of fact for the jury.2

runs perpendicular to the main track. such branch road or not, it will become South Chicago R. Co. v. Dix, 109 Ill. a common carrier thereon with all the 237; 17 Am. & Eng. R. Cas. 157. liabilities to the public which attend

The map required to be filed by a the main lines is erroneous. “Suppose, railroad company is sufficient if it for instance," said the court, “that the shows the alignment and profile; it is defendant owned a body of timber land not essential that it should show all the some miles from its main track and that connections, turnouts and switches. for its own purposes in procuring crossPeople v. Brooklyn etc. R. Co., 89 N. ties, stringers and other lumber for reY. 75; 9 Am. & Ěng. R. Cas. 454. pairs it should construct a track to said

Land Adjoining Side Track.—In State lands, using its engines and cars thereon v. United N. J. R. & C.Co., 43 N. J. L. for the transportation of said lumber to 110; 10 Am. & Eng. R. Cas. 103, it was the main track, and for no other purheld that the act concerning railroad pose, could it be claimed that the comcorporations, approved March 6th, 1877, pany would become a common carrier which authorizes such corporation to thereon and be bound to receive and condemn land "adjoining their road as transport all freight that might be constructed on their right of way as offered? We think not. The question located" does not apply to lands which in such cases must turn on the object merely adjoin a side track leading from and purpose of the branch constructed, the railway route to a freight house. and the road operated; and this is a

Contract Not to Build.— When the de- question of fact, dependent, not simply, fendants executed to the plaintiff rail- as we have said, upon the use, but upon road company a bond, one of the condi- the character of the use." tions of which was that said company Higher Rates.—A branch line may was not to lay down a side track at a properly be allowed a larger share of a certain town through which the railroad total rate covering branch and main passed, this condition is construed to be line than its mileage is part of the total à consideration inseverable from the mileage. Distance yields to lightness other considerations upon which the of traffic and other such considerations entire contract rested, and such consid- in such a case as this. This practice is eration being held illegal as against also sanctioned by the Iowa commispublic policy, and void, the contract sioners, who say: "The practice of alwill not be enforced, nor a recovery lowing to branch and smaller lines, had upon breach thereof. Pueblo & A. that gather up and distribute the traffic V. R. Co. v. Taylor, 6 Colo. I; 6 Am. of the main lines, a large percentage of & Eng. R. Cas. 474.

the entire joint rate than a pro rata is 1. South Chicago R. Co. v. Dix, 109 universal, and, so far as the commisIll. 237; 17 Am. & Eng. R. Cas. 157. sioners are able to judge, is correct.

2. Avinger v. South Car. R. Co. (S. Without it a few branch lines in the Car.), 35 Am. & Eng. R. Cas. 519. In State could probably earn operating this case, accordingly, it was held that expenses. The weak lines with a light an instruction that if a defendant rail- traffic must derive subsidy from the road company maintained and oper- main lines to whose large business ated a branch road, or ran its own en- they contribute, otherwise it would be gine and cars upon it, whether under impossible to equalize the rates, and its charter it had a right to construct stations on main lines would get very

VI. Negligence in Operating.-Where a parent company, operating a long line of road, constructs an auxiliary railroad for the purpose of a local line in the name of another company, and, in strictly pursuing the provisions of the statute, merly furnishes aid as a stockholder or bondholder, or a guarantor of bonds, to the auxiliary company, and such auxiliary company constructs its road in its own name, it is not the servant or agent, in such construction of its road, of the parent company; and the parent company is not, on account of being a stockholder or bondholder, or guarantor of bonds of the auxiliary company, responsible for the negligence or other default of the auxiliary company. I

VII. Mortgages. —When a mortgage is given by a railroad company on its franchises and on its roads to be thereafter built, and a branch road, not in contemplation at the date of such encumbrance, is afterwards laid and built, such branch road will pass under such mortgage, subject to the burthens put upon it by the company in the course and as incidents of its acquisition.2

VIII. Taxation. The exemption from taxation contained in the original charter of a railroad company does not, by mere implication, exempt branch roads subsequently acquired or built.3

LATITAT.-An ancient writ of process issuing out of the court of king's bench, after an actual or supposed bill of Middlesex to which the sheriff has returned "non est inventus." The de

causa causans.

low rates, while the smaller lines would ing to keep the track in repair was not be compelled as a matter of necessity to to be considered as being alone the exact very high rates." Nye v. B. C.R.

Fawcett v. Pittsburg & N. R. Čo.; Iowa R. Com. Rep. 1883, etc. R. Co., 24 W. Va. 755; 19 Am. & 737

Eng. R. Cas. I. Conductor on branch road represents In Brown v. Atlanta & A. L. R. Co., the company as to his own route, but 19 Shand. (S. Car.) 39; 13 Am. & Eng. not in giving information as to the run- R. Cas. 479, which was an action by ning of trains on main line. Atchison the owner of certain cotton which he etc. R. Co. v. Gants, 38 Kan. 608; 34 had placed on a platform alongside a Am. & Eng. R. Cas. 290.

side track of the railroad company, for 1. Atchison, T. & S. F. R. Co. '. its destruction by fire, the court said: Davis, 34 Kan. 209, qualifying Atchi- “We can see no difference in this reson etc. R. Co. v. Davis, 34 Kan. 199; spect between the use of the side track 25 Am. & Eng. R. Cas. 305.

and that of the main road, subject, of A railroad company in pursuance of course, to the same rule of proof as to a contract with a coal company ran negligence. Both belonged to the comcertain cars upon a siding belonging to pany and both, built in the same right, the latter company which terminated at had their proper uses connected with the bank of a river in a tipple. Owing the running of the road. The platform either to the careless way in which the placed near the side track by the town cars were run on the defective condi- authorities did not impose on the comtion of the track, the cars ran into the pany a measure of responsibility as to river and sunk the plaintiff's barge. In the use of that siding other than that a suit against the railroad company to which existed as to the use of the main recover damages, held that granting track." that the accident was due to the defect- 2. Coe v. Delaware, L. & W.R. Co., ive condition of the track, the com- 34 N. J. Eq. 266; 4 Am. & Eng. R. Cas. pany was liable for having run their 513.

on such a track, and that the 3. Southwestern R. Co. v. Wright, negligence of the coal company in fail- 116 U. S. 231.

cars

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