Atchison, Topeka & Santa Fe Railway Co. v. Kansas City, Mexico & Orient Railway Co.

The opinion of the court was delivered by 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, chaper 23, General Statutes of 1868, and section 14, chapter 286, Laws of 1901 (Gen. Stat. 1901, § 5974), whicD 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 thfe 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 exist — 574 — ing 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. Diet. 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 “tocross” 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 — 575 — 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 and appropriate to its own exclusive use the land located as its right of way and to oust the Santa Fe company fropa such territory altogether. No mutuality of occupation was intended to remain, and hence the act appealed to could have no room for application. This interpretation of the law is supported by the judgments of other courts. In Pittsb. Junction R. Co.’s Appeal, 122 Pa. St. 511, 528, 9 Am. St. Rep. 128, in the opinion it was said: “Upon exceptions to the master’s report, the court below held that the act of 1871 had no application, for the reason that it referred to railroad-crossings alone, while this was not á case of crossing at all in the proper sense of the term. In this we think the learned judge was clearly right. The act of 1871 relates ‘ to crossings of lines of railroads by other railroads.’ There was no attempt here to cross the line of plaintiff’s road. It was an attempt to run through the plaintiff’s yard, and the crossing of some of its yard tracks and switches, which were merely incident to the use of its main line. As was well observed by the court below: ‘ The attempt is not simply to cross the yard and tracks with a common use, but absolutely to take from plaintiff a portion of their yard for the sole use of the defendant. The issue is not in what mode the defendant should cross plaintiff’s property, but solely whether it can cross at all.’ ” In the case of A. T. & S. Railroad v. D. & N. O. Railroad, 110 U. S. 667, it was held : “The provision in the constitution of Colorado that ‘every railroad company shall have the right with its road to intersect, connect with or cross any other railroad,’ only implies a mechanical union of the tracks of the roads so as to admit of the convenient — 576 — passage of cars from one to the other, and does not of itself imply the right of connecting business with business.” In State v. New Haven & Northampton Co., 45 Conn. 331, it was decided that the location of a railroad for two miles close beside a turnpike, the traveled path of which was in some plapes changed to make room for the road, did not constitute an “intersecting” of the highway by the railroad, that term applying only to the case of a railroad• crossing a highway. (See, also, Railroad Co. v. City of Belleville, 122 Ill. 376.) Hence the board of railroad commissioners had no jurisdiction to determine the rights of the parties to this suit. It is further argued by plaintiff in error that the general law of eminent domain did not authorize the taking by the Orient company of the property sought to be condemned, because it was already devoted to an equally urgent public use by another railroad company, and was necessary to such use. In Lewis on Eminent Domain, second edition, volume 1, section 267, it is said : “The general authority to locate and construct a railroad from one point to another does not authorize the taking-of property already devoted to railroad uses. In one of the cases cited the court says : ‘A charter to build and maintain a railroad between certain points, without describing its course and direction, but leaving that to be determined and established by the corporation, as provided by the general laws, does not prima facie give any power to lay out the road over land already devoted to and within the recorded location of another railroad. It is not to be presumed that the legislature intended to allow land thus devoted to one public use to be subjected to another, unless the authority is given in express words or by -necessary implication. And such implication can only — 577 — be found in the language of the act, or from the application of the act to the subject-matter; so that the railroad could not be laid, in whole or in part, by reasonable intendment, on any other line.’ The 'legislature may authorize one railroad to take the property of another, and, as indicated in the opinion just quoted, this may be done by express words, or by necessary implication. These general rules are undoubted b.ut their application to particular cases is often attended with much difficulty, as will appear from the following sections.” But the mere fact that land is owned by one railroad company does not forbid its acquisition by another. Exclusiveness of right must depend upon reasonable requisiteness. One occupation justly may be reduced to the subservience of another paramount in its importance. Hence the character and extent of the use of its real estate by one railway company are always open to inquiry when sought to be taken by another under the power of eminent domain. In the same section of the work quoted, the author says: “The general rule above stated does not apply to prevent one railroad taking the property of another, which is not in use for railroad purposes and not necessary to the proper exercise of the corporate franchises.” It follows from this that, in all cases in which an appropriation , of land for the purposes of a railroad about to be constructed is desired, it may proceed to take any real estate necessary for its own use, not already absorbed in the necessary satisfaction of similar wants. The condemning company must, in the first instance, determine the relative requirements of the two roads for itself. It does this by laying out its road, procuring an assessment of damages, and proceeding — 578 — to build. If obstructed in its operations it may invoke the aid of a court of equity, and if the company through whose land the new road passes feels aggrieved, it may resort to the same forum for redress. The issues in such cases lie within the realm of fact, and the judgment of the trial court upon them is conclusive to the same extent as in other cases. In the case at bar issues of the precise character described above were framed by the pleadings. Upon the hearing the district court had before it all the facts which each party could urge in its own favor. Enough having been produced to sustain the judgment rendered, this court cannot interfere. The writer is of the opinion that the views expressed in the foregoing discussion relating to the scope of the act of 1901 are too narrow. Separating the most pregnant parts of the first sentence of section 14 by punctuation marks, the law reads as follows : “Any railroad company authorized to operate a railroad in this state desiring to cross, or unite its tracks 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.” In construing this language it is not necessary that a railroad should be reduced to a track. The title of the act reads, “An act concerning railroads and other common carriers,” and if the same condensing process were applied to the word as used there the law would fail. In the Century Dictionary, volume 5, page 4942, under the title “Railway,” the following description is given: “The parts of an ordinary passenger and freight railway proper are the road-bed, ballast, sleepers, rails, rail-chairs, splices, spikes, switches and switch mechanism, collectively called permanent way, and the — 579 — signals ; but in common and accepted usage the meaning of the terms railway and railroad has been extended to include not only the permanent way, but everything necessary to its operation, as the rolling-stock and buildings, including stations, warehouses, roundhouses, locomotive shops, car shops, and repair shops, and also all other property of the operating company, as stocks, bondg, and other securities.” Therefore, the legitimate meaning of the statute properly may be held to be : Any railroad company authorized to operate a railroad in this state desiring to cross another railroad’s grounds, or unite its track with any other railroad upon the grounds of such other railway corporation, shall make application, etc. At the time of the passage of the act of 1901, the law of 1868 was the only one in force upon the statute-book. Section 47 of that law, which left the conduct of contending railway companies to be governed, in the first instance, by the “golden rule,” was evidently deemed to be insufficient. Whenever one railway company desired to enter upon the grounds of another it usually selected “seeling night” or the Sabbath day as the time for its operations. The approach of one railroad to another led to a system of fortification and depredation, raid and reprisal, born probably of other motives than simple zeal for the public good. Every railroad company is as tenacious of its grounds as it is of its track. These may be crossed from point to point without an intersection of tracks. Roundhouses, coal-trestles and other structures are as important to the company as tracks themselves, and may be interfered with, and no good reason appears why the jurisdiction of the board of railroad commissioners should be forbidden to attach until two tracks are about to cross. The same evils — 580 — arise in each case, and require the same remedy. The board of railroad commissioners is better equipped than a court of equity for the determination of all such controversies. The questions thenjselves are really administrative in character and not judicial, though involving the exercise- of sound and expert judgment. The procedure prevents trespass by determining the question of necessity before any entry is made, and the award can do substantial justice to all the interests of both roads, general and local, and thereby to the public as well. All this was in the purview of the legislature with respect to tracks, and why not with respect to the ground a few feet from the ends of the ties as well as to that between the rails ? I am satisfied the legislature used the word “railroad,” in the section under consideration, in a sense large enough to include grounds used for railway purposes, and that the board of railroad commissioners were intended to have jurisdiction over all conflicts arising from the crossing of one company’s property by another road. (73 Pac. 899.) SYLLABUS BY THE COURT. 1. Railroads — Condemnation of Railroad Property. One rail way corporation cannot, under the general statutes of eminent domain of this state, condemn for right of-way purposes the land of another railway corporation already in actual and necessary use for railway purposes. Mr. Justice Johnston concurs with me in these views. However, the majority of the court being of a contrary opinion, the judgment of the district court is affirmed. Dostkr, C. J., Smith, Cunningham, Greene, Pollock, JJ., concurring.