Bartlett v. Chicago & Northwestern Railway Co.

Newman, J. The real ground on which the plaintiff bases ■his claim to recover is not entirely clear. It is certainly not among the general duties of a railroad company to furnish and operate spur tracks to the warehouses of its patrons. While it is its duty to carry, without discrimination, every man’s goods, when delivered for carriage at its depots or warehouses, it is under no obligation to receive them for carriage elsewhere. If any patron wishes special accommodations, he must buy them. He can compel them only by force of some contract or in pursuance of the statute. No ■doubt the burden is on the plaintiff to show affirmatively ■that the defendant, on one or the other ground, owed to Jaim the duty to maintain and operate the spur track. Unless his complaint state facts which show that the defendant owed him such duty, it is demurrable, and the demurrer was properly sustained. The statute referred to (sec. 1802, R. S.) is as follows: “ The owner of any elevator, warehouse or mill, at or near any station or terminus of any railroad, may, at his own expense, construct a railroad track from such elevator, warehouse or-mill, to such railroad, and connect with the same by a switch at a point within a reasonable distance from •such station or terminus, and the railroad corporation shall allow such connection. Such side track and switch shall at all times be under the control and management of, and be kept in repair and operated for the benefit of, such owner •or his assigns by such corporation; but the actual cost of .so maintaining and operating the same shall be paid monthly by the owner thereof; and in case of his neglect to so pay [338] the same upon demand, the obligation of this section upon any such corporation shall cease until such payment b® made in full.” The statute contemplates that the ow'ner of the warehouse to be accommodated shall provide his own. track, and requires the railroad corporation to operate, for his benefit, the track which he has so provided. If the corporation constructs its own track to its patron’s warehouse, to serve its own interest, that case is not within the terms ,of the statute. The statute does not require the corpora^ tion to operate its own tracks for the'special or exclusive benefit of any one of its patrons; but it may operate its own track for its own benefit, and may change its use to better accommodate its own business and occasions. The evident purpose of the statute was to provide for the compulsory operation, by the corporation, of the warehouseman’s own track, for the benefit of his business. It does not seek to> regulate the manner in which the corporation shall maintain or operate its own tracks. It does not appear by the complaint who constructed nor who owns this track. No facts are alleged from which such facts can be inferred. The only facts which might seem to bear on that question are that tfye track is in the street on which the plaintiff’s warehouse fronts, and was constructed for the benefit of the owner of the warehouse. But the defendant’s other tracks are in the same street, in front of the same warehouse, and were constructed for the benefit of its patrons. And, even if the defendant should have constructed this track especially for the benefit of the owner of the warehouse, that does not bring the case within the conditions of the statute, and does not establish a perpetual duty on tba defendant to operate it for the benefit of that property. The-improving and grading done by the plaintiff, after the track had fallen into disrepair, is of little significance; and, unless the plaintiff owned this track, there was no consideration for the defendant’s alleged promise to continue to operate it [339] for his benefit. It could do what it would with its own, without consulting the plaintiff or asking his consent. So it is considered that, because the complaint does not show either who constructed this track or who owns it, it fails to show a case within the statute; and, for the same reason, it fails to show a consideration which would support an agreement to continue to operate the track for the plaintiff’s benefit. By the Court.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings according to law.