16 Mont. 550 | Mont. | 1895
This case may be considered with reference to that of Butte, A. &. P. Ry. Co. v. Montana Union Ry. Co., ante, page 504.
The formal averments as to the corporate existence of the parties are the same, and like questions of the character of the use of the plaintiff’s tracks arise.
The more direct object of this suit is for an order permitting plaintiff to construct certain crossings for its own railway, switches and side tracks, over the main line, switches, side tracks and spurs owned and controlled by the defendants, in and about the various smelting and concentrating works of the Anaconda Mining Company, situated north and east of the city of Anaconda.
The Butte, Anaconda & Pacific Railway Company wishes to reach the same objective points, mining and smelting works, that the Montana Union tracks extend to. To accomplish this, certain crossings of the Montana Union tracks must necessarily be made. The letters A, B, C, D/ E, E, G, H, I, J, K, L and M show upon the map the points where plaintiff asks leave to cross, and the localities involved.
That the switches, side tracks and spurs of defendants and plaintiff are alike public highways, and that plaintiff has a right to cross, intersect or connect with defendants’ main road, spurs and switches, in the manner provided by law, is decided by the opinion in the former case cited. It only remains, therefore, to inquire into the facts with a view of determining whether the crossings and intersections are made in a manner most compatible with the greatest public benefit and the least private injury.
At the point J appellants had what is termed a ‘ ‘ three-throw” switch, made of movable rails connecting the Montana Union track going up the grade towards mining works with three prongs. To have crossed the movable rails would have been a great injury to the appellants by preventing the use of their movable rails. To put the crossing further east plaintiff would have had to cross three tracks of defendants to reach the Anaconda works. The court, after seeing and considering the exact situation, ordered the plaintiff, at its expense, to move the defendants’ switch north so as to allow respondent to cross one track, and not three, of the defendants’. The principal objection to this crossing seems to be the order of removal of appellants’ tracks off their ground, rather than to any inconvenience or injury which may ensue there
That railroad crossings are inconvenient, particularly where they are on grade, and frequent, is indisputable. But the law in regarding railroads as public necessities has not extended its generous privileges to them altogether without some possible attending inconveniences. Among the latter are lawful crossings, intersections and connections of a rival company legally competing for the transportation of freight.
It is therefore ordered that that portion of the district court’s order and judgment which permitted the three-throw switch of the appellants to be moved off its present right of way or roadbed to the north of its location at the time of the
The cause is remanded to the district court for modification in accordance with these views, and when so modified the judgment and order appealed from will be affirmed.
Modified mid affirmed.