Nedved v. Chicago, Milwaukee & St. Paul Railway Co.

McQOY, P. J. Under the provisions of the statute, section 534, Civil Code, plaintiffs, 93 in number, instituted this proceeding- before the railroad commissioners for the construction and maintenance -of a side track between the stations of Tabor and Yankton on defendant’s lines of railway in Yankton county. The matter was heard before the railroad commissioners and an order issued requiring the construction of such side track. From said order an appeal was taken to the circuit court. This appeal is taken from the order and judgment of the circuit court affirming the action of the railroad commissioners. ■Section 534, Civil Code, provides that where stations are more than twelve miles apart railroad companies, when required so to do by the board of railroad commissioners, shall construct [4] and maintain a side track for the use of shippeis between such stations. The following plat shows, the relative location of defendant's lines and stations thereon and approximate distances so far as material to the issues presented: [i] The first contention of appellant is that the court erred in finding the distance between- Tabor and Utica, via Napa Junction, to be 14.i miles, when as a matter of fact in a direct line Tabor and Utica are not to exceed 8:5 miles apart. We are of the view that under this -statute the “distance between stations” means the -distance apart along the line of the railway track upon which such stations are situated. It appears that Utica and Tabor, via Napa Junction, are 14.1.miles apart. If Napa Junction were 40 miles east of Tabor with Utica only 8:5 miles distance in a direct line across country, would it be a reasonable proposition to conclude that no sidings could be required to be constructed between them because Tabor and Utica were less than 12 miles apart? We think not. [2,3] It is next contended by appellant that'the board of railroad commissioners lias not arbitrary power to order a side [5] track. With his statement we are in accord; but we are of the view, however, that while the board of railroad commissioners would have no authority to arbitrarily require the construction, of a side' track under this statute merely for the reason that stations might happen to be more than 12 miles apart, still, in this particular case, the evidence as to the public necessity for the siding-in question, as.we view it, .is sufficient to justify the action of the board. It appears that the proposed siding- is approximately in the. center of a thickly settled prosperous agricultural district, where abundance of grains, stock, and other produce are annually grown; and which products, or a greater portion thereof, as every one knows, are the subject of shipment ,and the owners thereof shippers. The railroad commission is the tribunal appointed and empowered in the first instance to determine under this statute the existence of that public necessity which would require the construction and maintenance of a -side track. The general presumption is in favor of the regularity of its action, and should only be overturned when it clearly appears that the- surrounding- facts will not justify such action. A., T. & S. F. Ry. v. State, 23 Okl. 210, 100 Pac. 11, 21 L. R. A. (N. S.) 908; Steenerson v. Railway, 69 Minn. 353, 72 N. W. 713; Jacobson v. Railway, 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389, 70 Am. St. Rep. 358. [4] It is also contended that the railroad commission has no jurisdiction to require the construction of said side track for the reason that Tabor and Napa are less than 12 miles apart, the finding being that they are 10:5 miles apart. We are of the opinion that, under the evidence, Napa is not a railway station. It is a junction, merely. There is no side track at Napa. It is also contended that the demand for said side track is a mere subterfuge, but we are of the view that this contention is 'not justified by the evidence. It appearing that Yankton and Tabor by rail are 16.6 miles apart, and that ori the railway lines of appellant, there is no station or stations within 12 miles of Tabor on the eastward, and the evidence showing sufficient facts as to public necessity to justify the railroad commission in requiring- the construction and maintenance of said side track, the order and decree appealed from are affirmed.