281 S.W. 490 | Ky. Ct. App. | 1926
Affirming.
There is a small flag station in Whitley county on the line of the railroad track of the appellee and defendant below, Louisville Nashville Railroad Company, called Brummett, and at which there is also a side track which defendant claims was constructed for its benefit in maintaining its track and upon which it loaded cars with gravel to ballast its track. The appellant and plaintiff below, Joe Browning, filed this action in the Whitley circuit court against defendant, alleging in the first paragraph of the petition that defendant gave him permission to construct on its right of way, and along the side track at Brummett, a coal bin into which he might assemble coal until he got a sufficient quantity to load a car; that he procured lumber for the purpose at a cost of $109.00, but before he commenced the construction of the bin defendant withdrew its permission and because thereof he was entitled to recover of it the full value of the lumber, although he does not allege that it was worthless for any other purpose, or that he could not dispose of it for any price. In the second paragraph of his petition he alleges that defendant refused to permit him to construct a bin on its right of way suitable for the purpose of assembling coal and that he was thereby deprived during the months of August, September, October and November, 1920, of mining or shipping coal, and that if he had been permitted to do so he would have shipped enough coal to have made a profit of $1,000.00, and he sought judgment against defendant for those two items. The court sustained a motion to require plaintiff to elect which of the two inconsistent causes of action he would prosecute. No objection was made to that motion at the time, nor did plaintiff except when the court thereafter sustained it. He elected to prosecute the cause of action stated in the second paragraph of his petition. Thereafter he amended it by averring that defendant had theretofore given the same permission requested by him to others and by its refusal to him was guilty of discrimination, and was thereby liable to him under the paragraph as amended for a violation of its common law duties as a common carrier. A demurrer filed to that paragraph as amended was sustained and plaintiff declining to plead further his petition was dismissed, to reverse which he prosecutes this appeal. *378
Plaintiff chiefly relies as grounds for his supposed cause of action upon section 783 of our statutes saying: "Every company shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer, or be offered, for transportation, at places established by the corporation for receiving and discharging passengers and freight, and shall, when requested, check every parcel of baggage taken for transportation, if there is a handle, loop or fixture, so that same can be attached, and shall give to the person delivering such baggage a check for the same." It is furthermore contended that, independently of the statute, it was the common law duty of defendant as a common carrier to grant the permission plaintiff requested, and which will be referred to later.
Manifestly, the section of the statute relied on has no application to a case like this. It clearly refers to the furnishing of equipment and accommodations for the transportation of freight and passengers at places which it equips and maintains for that purpose and was never intended to require common carriers by railroad to furnish such accommodation as therein referred to at any and all points along its line that a prospective patron might select. When it establishes a station for the reception of passengers and freight it thereby becomes its duty to comply with the requirements of that section, even to the furnishing of sufficient cars, but no case that we have been able to find or to which we have been referred extends the application of the statute further than that. The question of its duty in distributing its depots and stations for the purpose of receiving freight and passengers along its line for the purpose of meeting the convenience of travelers and shippers is not involved in this case, since it is reduced to the simple proposition, whether the defendant as a common carrier is compelled at the behest of anyone along its line to either furnish shipping facilities, or permit its right of way to be used by the shipper for that purpose at any and every point along its line, although it may, forsooth, have previously constructed a side track at that point? That it is under no such obligation either by statute or at common law we are thoroughly convinced; and we are equally convinced that if the statute had gone to the extent of creating the duty here insisted on it would be unconstitutional and *379 void, because it would be taking of property for private use without due process of law.
The exact question was before the Supreme Court of the United States in the case of Missouri Pacific Railroad Company v. Nebraska,
"This court, confining itself to what is necessary for the decision of the case before it, is unanimously of opinion that the order in question, so far as it required the railroad corporation to surrender a part of its land to the petitioners for the purpose of building and maintaining their elevator upon it, was, in essence and effect, a taking of private property of the railroad corporation for the private use of the petitioners. The taking by a *380
state of the private property of one person or corporation without the owner's consent, for the private use of another, is not due process of law and is a violation of the Fourteenth Article of Amendment of the Constitution of the United States. Wilkinson v. Leland, 2 Pet. 627, 658; Murray v. Hoboken Co., 18 How. 272, 276; Loan Association v. Topeka, 20 Wall. 655; Davidson v. New Orleans,
The subject is also discussed in the text of 4 R. C. L. page 680, par. 155, wherein it is pointed out that it is no part of the duty of a common carrier to furnish the character of service here involved, since it does not come within what is commonly termed "carrier service" with all of its duties and obligations.
The direct question does not appear to have been heretofore before this court (except in the case of L. N. R. Co. v. Estes,
The theory of learned counsel for plaintiff is, and he so states in his brief, that the railroad "Is constructed through the farms for the purpose of furnishing outlet to markets, and the farmer who resides on the track has a right to have his goods carried from his farm to the market." Which is a proposition that if literally applied would altogether destroy the service performed by common carriers, and would render such agencies of no practical use or benefit to the country, to say nothing about the "undue process" question heretofore referred to. If plaintiff's theory be correct, then persons through or by whose land the railroad track runs would have the right not only to construct, or compel the railroad to construct, and maintain facilities on its right of way to receive shipments of all sorts of produce at any and every point selected by the shipper, but the same line of reasoning would also compel the carrier to stop its passenger trains at any and all such selected points to enable one to board or depart from any passenger train running over the line. Furthermore, if contiguous landowners possessed such privilege it would be a discrimination *382 to deny it to others living farther away from the railroad track, and it requires no stretch of the imagination to demonstrate that the imposition of such duties would render carrier service so impractical as to utterly destroy its usefulness.
What we have said is also an answer to the alleged discrimination urged in the amendment to the second paragraph of the petition, since that term is applied to the discharge of "carrier service" duties, and not to strictly private ones that the railroad company has a right to either perform or not perform as it sees proper.
The judgment of the trial court being in accord with the views herein expressed, it is affirmed.