Toledo, Saginaw & Mackinaw Railroad v. East Saginaw & St. Clair Railroad , 72 Mich. 206 ( 1888 )

Campbell, J.,

(dissenting). I cannot agree in the conclusions of the Chief Justice in this case, or upon the action of the State crossing board, which was brought before us at the same hearing. The whole proceedings are, in my opinion, in violation of the railroad laws, and absolutely void. I propose to refer only to those matters which are fundamental. I doubt very much whether the other objections taken are not sound; -but, if there was no power to authorize lands to be condemned at all, the questions of regularity do not become important.

As the opinion of the Chief Justice does not, as in his view "it was not necessary he should, state the peculiarities of these applications, I will point out such of them as it is necessary, in my view, to state:

The petition states the petitioner to be a corporation authorized to make a railroad from Durand, in the. •county of Shiawassee, via Saginaw, to Mackinaw City, in the county of Cheboygan, and that it was the intention to construct and maintain it throughout—

“ From and to the said places named, for that purpose, in' its articles of association, including all the branch, lines and spur tracks connected therewith in the city of East Saginaw.”

That the work had been divided into two divisions, for purposes of construction, and that division one extended from Durand to the Saginaw river, in East Saginaw; that the railroad runs from a point named, and through towns •named, to a point in the north-west quarter of section 21, near the southerly limits of East Saginaw, and “thence, by two separate tracks, to the Saginaw river.” The northward track is designated on the map and petition as petitioner’s main or through line of road.

It then proceeds to describe what it calls, branch road, •or tracks; the principal one crossing Washington avenues near Sidney street, where it again branches into two more branches, one called the “King-street Branch” and the other the “Middle-ground Branch,” which latter ■coasts the bayou, and terminates at the middle ground in the river.

These several branches are stated in the petition to have been determined necessary to develop business along the line of the railroad, and to obtain a river front on the Saginaw river, and reach and accommodate the shipping interests. The remainder of the petition states various matters relating to the details of the work •desired, and making the crossings over respondents’ .roads.

The King-street branch was relinquished on the hearing below. Whether this was regular is not important, in’ my view of the case.

We have, then, in brief, a railroad organized to run from Durand, through. Saginaw, to Mackinaw City, with its main track reaching Saginaw river, away from any of what the petition treats, and properly treats, as branches. It further gives, as a reason for the creation of branches,, the necessity of developing its business; putting its rights-entirely under section 28 of article 2 of the -railroad act. That section allows a company to—

“ Build such spur tracks or branches as may be found necessary to develop business along its line of road, as the board of directors may judge to be expedient, and for that purpose shall have the same powers and rights in all respects as are conferred upon it for the construction of the main line, and may subscribe to the capital stock of any other company organized under this act, with the assent of such other company. * * * All companies owning or operating such spur or branch railroad, or making any such contract or agreement with connecting or intersecting lines of railroad, shall furnish cars and transport freight over such spur, branch, or connecting road, at the same rates, and subject to the same restrictions and regulations, as shall be adopted for the transportation of freight upon the main line."

By section 45, railroads having either or both of their termini on navigable streams, between this and other states and Canada, preventing direct railroad connection, may own or operate vessels to form such a connection.

The chief question to which I propose to refer is the-legality of condemning lands or crossings for such tracks as this petition proposes to condemn, as well as the further question whether in the present case such branches could be so laid if in any case allowable.

I think it is impossible, under this petition, to regard anything described in it for condemnation as belonging-to the main track. The petition itself makes no such pretense. The statute for many purposes draws a clear distinction between the main track and all others. The-main track is throughout treated as a single line between two termini. And its right to form water connections is confined to those two termini.

Apart from the other objections, this has a bearing on the Middle-ground branch. That is proposed to have a terminus of its own on navigable water, to accommodate the shipping business. The legislative policy, as designated in both special charters and general laws, has not been to give railroad companies power at any place not a-terminus to make water connections. Under the old special charters, amendments were required to authorize such connections at all at any but the original terminir and the general law is positive on the subject. There must have been some reason for it. It very probably may have been the purpose of the Legislature to make each road a single highway from one point to another. In other highways and turnpikes the law has been strictly construed against extending them bej^ond or away from the fixed bounds, and in several cases in this Court we have held the franchises could not be exercised beyond those bounds.

But when we look at the powers given to build roads,, this appears more plainly. The. only roadway that any railroad company is authorized to acquire by condemnation is to lay it out—

“Not exceeding one hundred feet in width.” Article 3, § 9.

Lands may be had for depot grounds, and for embankments, and other adjacent purposes, necessary for the safe building of the track. Whatever road is laid must be within the line of 100 feet, or in the yards and depot grounds. There is no such thing contemplated as a series: of tracks forming half a dozen termini. This is also in the direct line of legislation on all artificial ways. No one has supposed that power to lay out one line involves power to lay out any more than one. Franchises, especially such as involve condemnation of lands, cannot be enlarged beyond the grant, as fairly construed. It cannot be held, I think, that a single company, under a power to go from A. to 13., can spread out in all directions, and cover different routes, long or short. If this could be done, the road first occupying the ground has under the statute some protection against rivalry in important respects, and under such a claim as this it might very easily change its whole pretended character. I cannot, therefore, agree with the Chief Justice in considering the question of condemnation for branches as out of the case. It seems to me to be the very and only fundamental question in the cause. Petitioner makes no other case.

Section 28, as already seen, authorizes branches and •■spur tracks to be built, and, in proper cases, to be built under the right to condemn lands. But this cannot mean that everything that a railroad chooses to call a branch is one under which lands can be appropriated. Taking ■this section together, it clearly indicates that these so-called “'spurs" or “branches” shall be in themselves highways of transportation, ovér which the same rights exist in the public and in favor of other railway companies for carriage as on the main line. They are treated as roads in themselves, analogous to any other road, and just as public in their nature. They are treated in this section as connecting roads are in the hands of other companies, and there is nothing to indicate that a railroad may lay out tracks and condemn lands for any branches that are not for public use and convenience. Each branch is treated in the statute as a separate enterprise, by itself. It cannot be seriously claimed that these branches are distinct highways, or serve any such purpose; and, if not, the company cannot compel land•owners to submit to them, or group tliem in one petition, and keep them from separate consideration.

It is not true in this State, as it is in some others, that a company once organized has an absolute right to secure its road. Under our Constitution, any one can be allowed to make such an organization. But, when it ■comes to taking land, the necessity of the enterprise for the public utility must be determined by a jury or commissioners. This cannot be settled once for all. On ■every occasion of condemnation proceedings, this question is open, and may be decided against the power.

This record shows plainly enough that this doctrine was not laid before the commissioners. Their finding «hows conclusively that, they considered themselves as •only inquiring whether the land was needed for the branches, and not for the public use, in any other sense.

This suggests another question much dwelt on at the hearing. No branch is allowed by the statute except as it is found “necessary to develop business along its line •of road.” This implies the existence of a road to do business. No such road existed when this land was sought to be condemned, and it is not made a condition ■of condemnation that any shall be built. It is easy to ■see that with these short lines running in every direction 'through East Saginaw, if they can be separately established, the whole main line, which may be of no account, may be ■dropped or subordinated. Proceedings set up for one ■purpose, as parts of one road, may be used to put in ■single hands the key to the local business, and to make the short tracks an end for separate profit' as feeders to •other roads, instead of means to help the main line. I ■do not think this is allowable.

No rule of corporation law is plainer than that corpoi-ations must keep within the lines and conditions of their ■chartered privileges. The legal powers of our railroad companies are very great, but they are limited to suclr connections as the law specifies, and their power to take-lands from unwilling owners is by the Constitution confined to public, and not corporate, necessity. That principle is violated by these proceedings'.

Passing by the minor irregularities, which might be-rectified in these or other proceedings, I think the objections referred to are absolute and incurable. There was no'power, I think, in the commissioners of crossings topennit these crossings, and no power to condemn the-right- of way. I think the action of all parties in the-matter should'be quashed.

Morse, J., concurred with Campbell, J.