State ex rel. Jacquith v. Wisconsin Central Railway Co.

Dodge, J". Sec. 1810, Stats. 1898, requires a railroad company to “erect and maintain on both sides of any portion of it's road good and sufficient fences . . . and suitable- and convenient farm crossings of the road for the iise of the-occupants of the lands adjoining.” A very large part of appellant’s brief is devoted to the question who has the right to-select place o'f a farm crossing, conceding that one be proper. But this question is not involved. The writ before us seeks to command, not the construction of a new crossing, but the maintenance of one, the place for which was selected by both parties thirty years ago, and as to which it is apparent the-relator’s farm has, in the course of many years, become ad [555] justed, and is now occupied. We can discover in this situation no reason to consider whether the owner has any voice in the original selection of a place for his farm crossing, or, if the railroad company has the right of selection, how far it must defer to the reasonable need and convenience of the-owner. "Where the place has already'been selected, and the railroad built with reference thereto (especially when an under-crossing), there remains only the question whether some such crossing is suitable and convenient for the use of the occupant, as those words are used in the statute. The discussion as to the right of selection is still' further rendered academic by the fact that the railroad company’s contention is, not that it should be at some other place, hut that it should be-discontinued entirely. Although the statute requires suitable and convenient crossings for the use of occupants, we have no doubt that such suitability and convenience is to be considered with due reference to the inconvenience and expense,to the railroad company, including, . of course, the possible interruption of trains, the-weakening of its tracks, and the increase of the hazard of accidents; in other words, that a crossing, especially an additional one, which would only slightly enhance the convenience of the owner, but would seriously obstruct the operation of" the railroad, or impose upon it very ^reat expense, should perhaps be denied altogether under certain circumstances. There is, however, nothing to indicate that those considerations have been ignored by the trial court in the present case,, nor have we any disposition to ignore them in the consideration of the evidence. That under-crossings may, in some cases, be required of a railroad as essential to the convenience of the occupant of the land, is fully established by all authorities. Jones v. Seligman, 81 N. Y. 190; Beardsley v. L. V. R. Co. 65 Hun, 502, 20 N. Y. Supp. 458; 8 Am. & Eng. Ency. of Law (2d ed.) 432; Port v. H. & B. T. R. Co. 168. Pa. St. 19, 31 Atl. 950; 3 Elliott, Railroads, § 1147; Buffalo [556] S. & C. Co. v. D., L. & W. R. Co. 130 N. Y. 152, 29 N. E. 121; Beardsley v. L. V. R. Co. 142 N. Y. 173, 36 N. E. 877. We have no hesitation in - affirming this view, for they may be vastly more promotive of the owner’s convenience and, while they may involve more of expense to the railroad company, it may well be doubted whether they are not always a real economy over the grade crossing with its continual peril of collision of trains with passing teams or cattle. Turning to the evidence in this case, we find it wholly without dispute as to specific facts. Its substance is sufficiently set forth in the statement of facts. We are satisfied, after careful consideration, that the trial court was correct in the view that no inference could reasonably be drawn from such facts other than that the maintenance of an under-crossing adequate for relator’s cattle is so essential to his occupancy and operation of his farm that it is suitable and convenient in the sense of the statute, giving all due regard to the inconvenience and expense thereby imposed on the railway company. As to location, there is no possible doubt that, if such crossing is to be maintained at all, this is the proper and best place for it, whether the owner’s interests or the company’s be considered. Hence the instruction of verdict for relator was proper. The duty of the defendant to1 construct and maintain such crossings as the court shall determine to. be suitable and convenient is a clear legal duty, imposed by express statute, and therefore enforcible by mandamus, notwithstanding it might, perhaps, be enforced also by proceedings in equity. State ex rel. Grady v. C., M. & N. R. Co. 79 Wis. 259, 48 N. W. 243. By the Court. — Judgment affirmed.