Weir v. Standard Oil Co.

Cook, J., delivered the opinion of the court. The appellants filed their bill of complaint in the chancery court of Hancock county seeking to recover a certain piece of land now fenced and occupied by the Standard Oil Company, all of which is included, in a larger piece of land also fenced, and known as 'the depot grounds of the Louisville & Nashville Railroad Company, and also seeking by their bill to recover rent for the usé and occupation of the land by the Standard Oil Company, and from a decree dismissing the bill of complaint, this appeal was prosecuted. The facts as shown by the record, and as found by the chancellor, are substantially as follows: In 1869 the predecessor of the.Louisville & Nashville Railroad Company, by a condemnation proceeding, acquired for a right of way and depot purposes a strip of land six hundred and fifty feet wide in the town of Bay St. Louis. Alexander Bookter, father of the complainants, was the owner of a part of the land condemned, and was a party defendant to that proceeding, and on the 10th day of November, 1870, he also executed a deed conveying to the railroad company a strip of land fifty feet wide on each side of the center of the main line of the railroad as then constructed across the Bookter lands. Subsequently to this, but prior to 1.880’, the railroad company fenced, up a strip< four hundred and fifty feet wide covering the whole of the expropriated area except an outside strip of one hundred feet on the north side and on the south side thereof. This strip of four hundred and fifty feet, being two hundred and twenty-five feet on each side of the main line of the railroad, was fenced up by the railroad for its general depot grounds, and there was erected within this enclosure passenger and freight depots, coal bins, and other railroad structures and equipment. Running across these depot grounds, on one side of the strip of land acquired from Bookter by the condemnation proceedings, is a street known as Bookter street, and at the — 215 — point where this street enters the depot grounds, as well as at other points, there are openings in the fences for the use of the public in going into ,and out of the, depot grounds. This fence with the necessary openings therein has been maintained by the railroad company from prior to 1880 to the present time, and the lands within the inclosure have been continuously used for general depot and railroad purposes. On December 2, 1891, the Louisville & Nashville Railroad Company leased to the Standard Oil Company the right to erect within the inclosed depot grounds “an oil warehouse twenty by forty feet, of neat appearance and to be kept painted standard L. & N. color.” This lease contract expressly provided that the building should be erected under the supervision and direction of an engineer or superintendent of the railroad company, and that the buildings or improvements would be removed by the oil company within thirty days after receiving notice in writing so to do, and under this lease the Standard Oil Company erected a warehouse within the inclosure and upon that part of it which was formerly owned by the Bookters, the ancestors of these complainants. On the 30th day of October, 1900, another lease was made with the Standard Oil Company giving it the right to erect, within the inclosure of the depot grounds, structures and inclosures for the handling and storage of oil. A sketch showing the proposed location of the oil structures was included in the lease, and it was expressly provided that the structures should be erected under the direction of an engineer or superintendent of the railroad company; that they should be at least seventy-four feet distant from the center of the main track of the railroad, and should be built in a substantial manner and have a neat appearance and be kept painted the same col- or as the railroad company’s buildings in that vicinity, and that the building and improvements would be removed and the right of way vacated whenever demanded by the railroad company upon giving thirty days notice in — 216 — ■writing. Under the terms of this lease the Standard Oil Company erected an oil warehouse and oil tank, these improvements being on that part of the depot grounds that was originally lmown as the Bookter tracts. These structures or improvements were maintained and used by the Standard Oil Company until 1917, when they were destroyed by fire. Thereafter, on January 29, 1917, a new lease was executed whereby the railroad company, for an annual rental of thirty-six dollars, granted to the Standard Oil Company, for a term of five years, the right to inclose and occupy a particularly described part of the depot grounds; the portion of land to be so occupied and used being something over one hundred feet further removed frqm the main line of the railroad than the place where the warehouse that w;as burned w,as located, but still being on that portion of the depot grounds which had been originally acquired from Alexander Bookter by the condemnation proceedings. This lease provided for measures for protection against fire, and further provided that if the lessor should sooner desire a restoration of the leased premises, the leesee would, upon ninety days ’ notice, restore peaceable and quiet possession of the premises to the lessor. Under the terms of this lease the Standard Oil Company inclosed the land described therein with a fence, and erected within this inclosure substantial oil tanks, and other equipment, necessary or useful in storing and handling oil. The portion of land so inclosed lay along and near Bookter street, and it is shown by the evidence that the railroad company delivered tank cars loaded with oil on a side track across Bookter street and some distance removed from this inclosure and oil depot. From the point where the tank cars were delivered by the railroad company, the oil was conveyed from these cars to the storage tanks of the oil company by means of a pipe line. From these storage tanks the oil was delivered to* the customers of the oil company by means of oil wagons and motor-driven oil trucks. — 217 — Tlie decisive question for a decision is whether or not the leasing of the land to the Standard Oil Company and the use thereof, under the circumstances and in the manner stated, was a use consistent with the purposes for which the right of way was acquired, or whether it was a use so foreign to railroad purposes as to constitute an abandonment or an additional servitude not permissible under the right of title acquired for railroad purposes by condemnation or otherwise. A,s to whether certain uses of a railroad right of way are inconsistent with the purposes for which it was acquired, there is some conflict in the authorities; but the authorities generally support the conclusion that a railroad company may make any use of the land acquired by it for a right of way, which directly or indirectly contributes to the safe, economic, and efficient operation of the road, and which does not interfere with the rights of propert}7 pertaining to the adjacent lands. As said by Justice Brewer in Western U. Teleg. Co. v. Rich, 19 Kan. 517, 27 Am. Rep. 159: “The railroad company may use its right of way not merely for its track, but for any other building1 or erection which reasonably tends to facilitate its business of transporting freight and passengers, and by such use in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damages to the original landowner. ” In the consideration of the question of the rights of a railroad company in the use of its right of way it has been held that, if the company; in order to facilitate its business, could have erected similar structures and put the land to a similar use, it could license others to do the same thing for the same object. Grand Trunk Ry. Co. v. Richardson, 91 U. S. (1 Otto) 454, 23 L. Ed. 356; Illinois C. R. Co. v. Wathen, 17 Ill. App. 582. That the railroad company would have had the right to have erected and used the oil tanks and other structures for the purpose of facilitating the unloading* of its — 218 — tank cars and the delivery of oil and oil products would hardly be questioned. The evidence shows, and it is a matter of common knowledge, that oil is transported in tank cars, and in order to be efficiently handled it must be unloaded into oil tanks. It is manifest that the handling of the oil will be greatly facilitated by having; these tanks located in close proximity to the tracks of the railroad. It may be true, as contended by the appellants, that it is possible to locate these receiving tanks at some place a,way from, the right of way and to transport the oil to these tanks by means of a pipe line, but it is not shown that the necessary location, and rights of way for pipe lines, could have been obtained, or that the oil could be promptly and effectively handled in this way, and since the piping’ of this oil involves the unloading of the cars of the railroad company, it is reasonable to conclude that this ought to be within the grounds and under the control of the railroad company so that it might be done under the supervision of its own employees. It is certainly to the interest of the public that the oil be handled as cheaply and efficiently as possible, and there is nothing in the record to show that the same facilities had been or would be denied to any other oil company, and we are of the opinion that the construction and maintenance on the right of way of these tanks and other facilities for the handling of oil reasonably tends to facilitate its business of transporting this character. of, freight and does not constitute a misuse of the easement which the railroad acquired in the land. In 36 L. Bl A. (N. S.) 512, may be found an elaborate note in which the authorities on this subject are collated and discussed. There was some testimony tending to show that the Standard Oil Company parked its oil wagons and trucks under a «11601 erected on the lot, and permitted its mules to run within its inclosure when they were not in service, and the argument is made that this constituted a misuse of the easement which would entitle appellants to dam — 219 — ages for such wrongful use; hut no such question is presented by the pleadings, and it i§ unnecessary to decide whether this was a misuse of the easement or merely an incident to the legitimate use as an oil depot. The decree of the court below is affirmed. Affirmed.