Mississippi R. Commission v. Illinois Cent. R. , 113 Miss. 92 ( 1916 )

Holden, J.,

delivered tbe opinion of tbe court.

This is an appeal by tbe State Railroad Commission from a decree of tbe chancery court of Hinds county making perpetual an injunction against tbe Railroad Commission from enforcing an order requiring the Illinois Central Railroad Company to establish a plantation road crossing under its track at trestle No. 66566. Tbe bill filed by tbe railroad company seeking tbe injunction was based upon two grounds: First, that tbe Railroad Commission in making tbe order acted under section 4058 of tbe Code of 1906, and that tbe Commission bad no jurisdiction or power, under said section, to make such order, and bad no lawful authority to require tbe'establishment of such private plantation crossing in any case; and, second, that tbe lands owned by tbe petitioner, R. E. Dodd, f-or whose benefit tbe road crossing was to be established, did not adjoin or touch the railroad right of way, and therefore did not come within the meaning of the statute. We here set out the material parts of section 4068:

“It is the duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle-guards where its track passes through inclosed land; and to make and maintain convenient and suitable crossings over its track for necessary plantation roads. For any failure so to do, the railroad company shall be liable to pay two hundred and fifty dollars, to he recovered by the person interested.”

It appears from the record that the said Dodd had two plantations separate from each other, one lying on either side of the railroad track, but not joining, and chat Dodd had procured a private right of way from the hoard of supervisors through land not belonging to him to the right of way of the railroad, hut that he was not the owner of the land through which the railroad passed.

It will he observed that-section 4058, Code 1906, is the only statute we have requiring the establishment of plantation crossings over railroad tracks. The statute provides a penalty of two hundred and fifty dollars “to be recovered by the person interested” for failure of the railroad to establish such plantation crossings when necessary, in order that the owner of adjoining lands on either side of the track may use such road crossings for his" convenience in crossing the railroad track from one part of his land to the other. The right of the adjoining landowner on either side of the railroad track, to require the establishment of plantation crossings, is a private, individual right granted by section 4058, Code 1906, and the remedy to enforce the establishment of such crossings must depend entirely upon the statute which give the right. The State Railroad Commission has no authority to require the establishment of plantation crossings, as the exercise of such power would be to enforce a private, individual, statutory right which the Railroad Commission was not empowered to deal with, by the legislature. It has no authority under section 4058 to enforce the private right given by that statute, but the right under the statute can be enforced only in the courts “by the person interested.” The crossing sought to be established here was a private crossing; that is, a plantation crossing for the sole convenience of the owner of the land on either side of the track.

Section 4058 provides for the establishment and maintenance of suitable and convenient crossings over the railroad tracks for necessary plantation roads. The proof in this case shows that Dodd’s plantations were several miles apart, one being on the east and the other on the west side of the railroad, and neither plantation being adjacent to the railroad right of way, but being several miles from it. To put if in a shorter way, the railroad track here did not pass through the inclosed land of Mr. Dodd, but it passed through other land lying between the track and Mr. Dodd’s land. The fact that Mr. Dodd had secured a right of way over the land adjoining the railroad right of way did not, in our opinion, constitute him the owner of the land through which the railroad passed, within the meaning of the statute as construed by this court. Therefore we say that under the statute the railroad company should not have been required to make and maintain the crossing here in question over or under its track, as Mr. Dodd i^ not so situated as to entitle him to exercise the right given under section 4058. At all events, if the statute gives a right to require the establishment of a crossing over the track to a landowner situated several miles from the railroad, such as this case here with Mr. Dodd, still his remedy to enforce the right would be under the statute, and he could not resort to the State Eailroad Commission to enforce his private right instead of going into the courts for that purpose.

These views are sustained by the following authorities: Railroad Co. v. Murrell, 78 Miss. 446, 28 So. 824; Railroad Co. v. Jones, 73 Miss. 397, 18 So. 684; Seel Binder v. I. C. R. R. Co., 73 Miss. 84, 19 So. 300; G. & S. I. R. R. Co. v. Railroad Commission, 94 Miss. 124, 49 So. 118.

The decree of the lower court is affirmed.

Affirmed.