115 Neb. 727 | Neb. | 1927
August E. Holmberg, hereinafter deferred to as plaintiff, owns and resides upon a quarter-section farm situated near Wausa, Nebraska. This farm is bisected by the right of way of the Chicago, St. Paul, Minneapolis & Omaha Railway Company, hereinafter referred to as defendant. Situated north of defendant’s right of way is a depression or low, wet valley which in a general way parallels the right
The first assignment of error at the threshold of this case is that the railway commission erred in refusing to take notice of, or receive in evidence, the record of the former hearing of 1922. This record, duly authenticated, was offered in evidence by the defendant at the present hearing. The commission refused to admit it in evidence,
In considering the previous determination of the Nebraska state railway commission of the matter now before us, when first presented to that commission by the same parties, it is to be remembered that this commission finds the source of its power in the Constitution. The limitations of its powers, and the proper manner of their exercise, must be determined by the terms of that instrument, and also, as expressed therein, “as the legislature may provide by law.” In the exercise of its prerogatives the Nebraska state railway commission is not subject to direction or criticism by the courts, except as what transpires may be a proper subject of judicial review, as bearing upon its orders or “judgments.” Also, the commission is free, in the absence of statutory or constitutional inhibition, to adopt and pursue its own rules and course of procedure. Omaha & C. B. Street R. Co. v. Nebraska State Railway Commission, 103 Neb. 695.
So, too, this court is committed to the doctrine that— “The state railway commission has independent legislative, judicial and executive or administrative powers so far as necessarily involved in the ‘regulation of rates, service, and general control of common carriers;’ and such exercise of
But the legal effect of orders entered in exercise of its judicial power has been “expressly controlled and limited by legislative action.” By statute it is expressly provided that orders of the commission made upon hearing, such as is now before us, shall be “in force and effect from and after the date fixed by the commission, and shall so remain until annulled, modified, or reversed by the commission,” etc. This language, in connection with the context and other provisions of the act, sustains the conclusion that in proceedings which involve either directly or as a necessary consequence the annulment, modification or alteration of a previous order entered by the commission, the doctrine of estoppel or res judicata, as usually applied to judicial decisions of courts of record, has no application whatever. The analogy between the control of orders by a court during the term in which they were entered, and the control by the commission of its orders at all times, would seem to be complete.
From what has already been set forth, it also follows that whether such proceedings to reverse, modify, or annul shall take the form of an application to reopen the original proceeding in which the order complained of was entered, or whether they shall take the form of an independent proceeding and formally wholly unconnected with the previous proceeding, is a matter of procedure strictly within the constitutional control and determination of the commission. The conclusions here announced seem to be in accord with the weight of authority. Comp. St. 1922, secs. 5496-5498, 5527; Laws 1923, ch. 167; Lindemann v. St. Joseph & G. I. R. Co., 113 Neb. 284; Board of R. R. Commissioners v. Atchison, T. & S. F. R. Co., 8 I. C. C. Rep. 304; Cattle Raisers Ass’n v. Chicago, B. & Q. R. Co., 12 I. C. C. Rep. 507; Goss v. Director General, 73 I. C. C. Rep. 649; Bell & Zoller Coal Co. v. Baltimore & O. S. W. R. Co., 74.1. C. C. Rep. 433; Motor Transit Co. v. Railroad Commission, 189 Cal. 573;
It is the defendant’s further contention that, the right of way having been condemned and paid for, the legislature is “without power thereafter to compel the railroad to expend substantial sums of money for the convenience of such landowner or his grantee.” It would seem that the question suggested is not fully presented by the record in this case. It is, however, stated by the defendant in its brief that its right of way was obtained by the usual condemnation proceedings. This is tacitly conceded by plaintiff’s failure to deny either in oral argument or written brief. If we take judicial notice of this fact, possibly it will not be disputed that this right of way was obtained prior to 1921 at a time when the following statute was in full force: “When any person owns land on both sides of any railroad, the corporation owning such railroad shall, when required so to do, make and keep in good repair one causeway or other adequate means of crossing the same.” Rev. St. 1866, ch. 25, sec. 106.
Accepting the above assumptions as in accord with the facts in the instant case, then the damages for the land condemned were assessed in view of the provisions quoted, and the amount of recovery was necessarily diminished because of the terms of this statute. It follows that the railroad company is bound to construct and maintain a “farm crossing” defined by statute which, in terms at least, does not purport to describe a “grade crossing” nor preclude a further definition of “adequate means of crossing the same” by the state in proper exercise of its police power. Lindemann v. St. Joseph & G. I. R. Co., supra, would appear opposed to defendant’s contention and controlling on this branch of the case.
However, the question under consideration naturally leads to and suggests the further contention made by the defendant that section 5527, Comp. St. 1922, as amended by chapter 167, Laws 1923, is unconstitutional and void, being in violation of sections 3, 16, and 21, art. I, Constitu
The application of the principles of constitutional lav/ upon which the defendant bases its contention to the facts in this case discloses that the fundamental question involved here is the right of the state, by the exercise of its police power, to eliminate the perils of grade crossings. The principles themselves are well established. As applied in the precedents found in the court of controlling jurisdic-. tion, it would seem that the validity of the statutes attacked must be sustained. Mr. Justice Hughes, in delivering the opinion of the supreme court of the United States in Chicago, M. & St. P. R. Co. v. City of Minneapolis, 232 U. S. 430, said: “It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings, but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks, or to carry their tracks over such highways.” Other specific illustrations of the application of this established rule to the elimination of grade crossings are Davis v. County Commissioners, 153 Mass. 218; New York & N. E. R. Co. v. Bristol, 151 U. S. 556; Selectmen of Norwood v. New York & N. E. R. Co, 161 Mass. 259; Illinois C. R. Co. v. Copiah County, 81 Miss. 685; City of Harriman v. Southern R. Co., 111 Tenn. 538; St. Louis & S. F. R. Co. v. Fayetteville, 75 Ark 534; Chicago, B. & Q. R. Co. v. People, 200 U. S. 561; Cincinnati, 1. & W. R. Co. v. Connersville, 218 U. S. 336; Missouri P. R. Co. v. City of Omaha, 235 U. S. 121. See, also, Denver & R. G. R. Co. v. City and County of Denver, 250 U. S. 241; Erie R. Co. v. Board of Public Utility Commissioners, 254 U. S. 394; Chicago, R. I. & P. R. Co. v. Public Service Commission, 287 S. W. (Mo.) 617; Richmond, F. & P. R. Co. v. City of Richmond, 145 Va. 225.
A consideration of cases above cited discloses that the source of the state’s authority to adopt regulations for public safety at grade crossings is the police power of the state, and that the elimination of grade crossings is within the scope of that power. The fundamental fact upon which its existence is justified is that its exercise promotes the safety of either or both of two distinct classes: (1) The passengers transported by the railways; and (2) travelers proceeding over the “intersected way.” These considerations apply to “farm grade crossings.” It must be conceded that each of these, in greater or less degree, is a place of potential danger. Indeed, some farm crossings, because of peculiar situation, may impose greater perils upon the public there in course of transportation, as well as upon persons and property on the premises where situated, than such as are incidental to usual grade crossings upon public highways. The regulation and elimination of farm grade crossings must therefore be deemed properly within the
The last proposition for consideration is embraced in the question, “Is the order of the railway commission reasonable in view of the peculiar circumstances of the case?” The authorities upon the question here involved are not numerous. Elliott on Railroads makes use of the following language as applicable thereto: “Communication from one part of a landowner’s property to another part, which has been cut off by a railroad right of way,.is often provided for by passways and subways constructed under the tracks. As a rule, such passways and subways are more convenient for the landowner, and are at the same time much safer for the railway company, for collisions and injuries at such crossings are practically reduced to a minimum. There are but few adjudicated cases as to whether or not a company can be compelled to furnish a crossing by means of a pass-way or subway under the track. * * * It has, however, been held, and correctly, we think, that where a railroad company was required to construct farm crossings, and it appeared that the track was on a high embankment, and there was a natural depression through which a subway could be more conveniently constructed than a grade crossing, such subway would be ordered constructed.” 3 Elliott, Railroads (3d ed.) 476. Beardsley v. Lehigh Valley R. Co., 142 N. Y. 173; Van Wagner v. Central N. E. & W. R. Co., 80 Hun (N. Y.) 278; Jones v. Seligman, 81 N. Y. 190; Powell v. Atchison, T. & S. F. R. Co., 215 Mo. 339.
We are also convinced from a careful examination of the record that, in view of the circumstances therein set forth,
Affirmed.