People v. Lake Shore & Michigan Southern Railway Co.

Graves, O. J. This action was commenced before a justice of the peace to recover the penalty of $10 alleged to have been forfeited by the Bailway Company under section twenty-seven of the Act approved June 8, 1881, entitled “ An act to revise and consolidate the laws relating to the establishment, opening, improvement and maintenance of highways and private roads, and the building, repairing, and preservation of bridges within this State.” The section reads as follows: “ Where any highway may have been or shall be established across any railroad, the company operating such rani-road shall open, construct a/nd maintain such highway and the necessary crossing therefor across their right of way and brack. The commissioner may serve a written notice [285] on any person in charge of the ticbet or freight office nearest to such crossing, requiring such opening and construction within thirty days from and after the service of such notice, and in default of such opening and construction as required by such notice, the company in fandt shall be liable to a penalty of ten dollars per day for every day thereafter during which such highway shall remain unopened, and during which the same and the necessary crossim,g therefor shall remain unconstruciedP Pub. Acts 1881, pp. 288-295. The Pailway Company pleaded the general issue, and the case was submitted to the justice on the following agreed statement of facts: 1st. That nine years ago defendant constructed its line of railway from Jonesville, Hillsdale county, Michigan, to Lansing, Ingham county, Michigan, crossing the township line which divides the townships of Lansing and Delhi, Ingham county, twenty rods east of the county line which divides the counties of Ingham and Eaton. 2d. That in the fall of 1882 a highway was duly laid out and established on said township line, commencing at said county line and running thence east on said township line one mile. 3d. That the township authorities caused the timber on the line of such highway from said county line east to the railroad right of way to be chopped and fallen (preparatory to opening such highway) immediately after such highway was so laid out. 4th. That thereupon the commissioner of highways of one of said townships served upon the defendant, in accordance with section twenty-seven of Act 243 of the Laws of 1881, a notice stating to defendant the establishment of such highway, and requiring it, said defendant, to open, construct and maintain such highway across ¿its right of way and track. 5th. That said highway has never been actually opened to the public or for travel on either side of said railway. 6th. That defendant failed and neglected to comply with such notice, or to open, construct or maintain such highway, and that more than thirty days, to-wit, thirty-one days, have elapsed since such service of said notice. 7th. That defendant’s right of way at said point is one hundred feet wide, fenced and occupied by defendant, and it would cost to so open and construct, as required by said notice, at least one hundred dollars. [286] 8th. For the purpose of this suit no question is made about the regularity of the laying out or establishment of such highway, or as to the contents or service of such notice, each and all being admitted to be in accordance with said section of said session laws.” The justice decided that these facts established the forfeiture sued for, and he gave judgment accordingly. The Railway Company removed the case by statutory certiorari, and the circuit court determined that the facts were not sufficient and reversed the judgment. The public authorities now ask an examination of the case here on writ of error, and contend that the facts well warranted the judgment given by the justice, and that it ought to be restored. There is no controversy, about general principles. The company does not deny that it holds its property, as do all other proprietors, subject to the sovereign power of police and the general authority of government. It sets up no claim to favor, nor any immunity from the acknowledged maxims of justice. It solicits no discrimination. "What it contends for is that no exception shall be made against it in the application of these principles. The sacredness of property does not depend on whether the proprietor is a natural person or an artificial person. Nor does it depend on whether the property itself consists of lands, or shops, or warehouses, or railroads, or cars, or corporate stock. "Whether property interests are in farms, or in buildings, or in cheese factory associations, or in other corporate industries, or in some other lawful form, the fundamental rights of ownership are exactly the same. It is one of the first and one of the main objects of government to protect the rights of property wherever they reside, and in case this duty is consciously and deliberately violated in any direction, it is not a mere political non-feasance, — it is a downright assault upon the right vested in every holder of property, and a breach of that trust which the institution of government implies. Whether the proprietor is wise or foolish, rich or poor, weak or powerful, a natural person or a corporation, the rule equally applies. But in order to administer the requisite protection, and [287] effectuate, as far as may be, tbe public safety, utility, and convenience, a great variety of interferences become necessary. And so long as they fairly conform to the principles on which they respectively depend, they cannot be questioned. But if in any instance the reason of interference, which the fact conclusively implies, has no connection with the only reason on which it would be possible to justify that interference, the claim of right by virtue of the police power becomes a mere pretext, and the particular interference is a perversion of authority and an invasion of the right of property. Admitting this to be an accurate view, how does it bear on this controversy ? We are not dealing'with a case where the question is as to what a company may be bound to do to fit up crossings and construct approaches and adjustments' on a highway either older or newer- than the railway. A leading reason for requiring these things of the company is because it has practically rendered them necessary by the way in which it uses its land, and it seems entirely just to demand that as far as the same can be reasonably accomplished it shall reduce tlie inconvenience, occasioned to the public by its own peculiar mode of enjoyment, to a minimum. But when the reason ceases, the right of interference must cease. The obligation cannot be carried beyond its principle. As we observe, the case under review is not one concerning the construction of approaches or a crossing. But the fact is obvious that it must stand, if at all, on the reason just mentioned. "Unless what is required can be justified on the ground that the mode of enjoyment of its land by the company renders it necessary, it cannot be justified at all. Considering what it is that the company is asked to do, no other basis is possible. Can the requirement be supported on that theory ? The township insists that the company shall remove the forest from its land within the limits of the highway, and fully construct the highway in all its parts over the entire hundred feet, and make it fit and ready for travel. Now, there is no such connection between what is here exacted [288] and the mode in which the company occupies its land, as to let in the reason. The new highway proposed over the hundred feet is not a thing which is wanted in order to fit the railroad to its environments and establish a state of compatibility. It is to be a creation by itself, an independent work; not a contrivance which the existence of the railroad renders necessary, and which otherwise would be needless; not an appendage, not a feature of the railroad nor a thing incident to it. On being made, neither its continuance nor its excellence would be dispensed with if the railroad were removed. It would remain as an independent public work, to be kept up at the public cost. The sole ground, therefore, on which any power can be based for compelling the company to do the particular thing now demanded is inadequate and inapplicable. I agree, therefore, with the circuit judge. The statute cannot be applied in the large sense attempted. This conclusion might be enforced by reasoning in other channels, but I do not deem it needful. Much reliance has been placed on Albany Northern R. R. Co. v. Brownell 24 N. Y. 345. It is enough to say now of that case that it does not apply. I think the judgment of the circuit court should be affirmed with costs. Dooley and Campbell, JJ. concurred Sherwood, J. I am unable to concur in the result in this case as stated by my brother.