76 Neb. 450 | Neb. | 1906
The Farmers Grain and Live Stock Company applied to the district court for a writ of mandamus to compel the Union Pacific Railroad Company to furnish cars on a cer-.
A somewhat extended statement of tbe facts is necessary to a proper understanding of the case. In 1886 tbe Kear-ney Milling Company built a flouring mill in tbe city of Kearney, and induced tbe respondent railroad company to construct a side-track, extending eastward from its connection with tbe main track to and across certain lots owned by tbe milling company, upon which its mill stood. In order to reach the mill property, the track was constructed for some distance on a public street, and across certain other streets and alleys of the city, and also across tbe corner of a lot belonging to a third party. This sidetrack extended east and west immediately north of tbe mill, and a warehouse and elevator were afterwards erected by tbe milling company immediately north of tbe side-track. Afterwards tbe milling company moved its elevator to two lots, belonging to it, lying east of tbe premises just mentioned, and just across one of tbe alleys of tbe city, and tbe side-track, in order to accommodate tbe elevator in its new location, was extended eastward across tbe alley and across a lot belonging to tbe milling company. In 1898 proceedings were brought to foreclose a mortgage covering the milling company’s property, and the property passed into tbe hands of a receiver appointed in said proceedings. Tbe receiver leased tbe elevator on tbe lots east of tbe mill to certain third parties, and such lessees leased certain lots belonging to other parties lying east and just across a public street from tbe elevator, and for the better accommodation of tbe elevator induced tbe respondent railroad company to extend tbe side-track across such street and one of the lots east of tbe elevator property. Tbe mortgage was foreclosed, and tbe intervener became tbe purchaser thereof‘at foreclosure sale, obtaining possession thereunder in March, 1899. Early in tbe summer of 1901 be inclosed tbe mill property with a fence, placing gates
Cross-examination: “Q. They wanted a switch to the mill so that they could load and unload? A.. Yes. Q. They wasn’t seeking to get it for any other purpose excepting the. accommodation of the mill? A. That was all. Q. Any talk of it being uséd for anything else? A. So far as I can re-, collect there was not. Q. There was no agreement that it was not to be used for any purpose but for your mill, Avas-there? A. I have no recollection of anything being said.”; It also appears that, when the milling company moved its elevator to the lots east of the mill, the respondent agreed-to extend the track and pay for moving the elevator. In each instance it laid the track and furnished the material. Before the side-track was constructed the city granted the respondent a right of way over and across such of the streets and alleys as it traversed or crossed.
These facts, we think, warrant an inference that the respondent constructed the side-track across the intervener’s premises under at least an implied grant of a right of way from the intervener’s privies in estate, the then owners of the premises, and that such track now constitutes a part and parcel of the respondent’s railroad system, open alike to all requiring service thereon. Section 4, art. XI of the constitution is as follows: “Railways heretofore constructed, or that may hereafter be constructed in this state are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by laAV.” The term railroad includes all side-tracks necessary or convenient for the transaction of the company’s business. Township of Rock Creek v. Strong, 96 U. S. 271; Black v. Philadelphia & R. R. Co., 58 Pa. St. 249; Town of Mason v. Ohio River R. Co., 51 W. Va. 183; State v. Stone, 119 Mo. 668. The side track in question is connected Avith the respondent’s main line. In the absence of evidence to the contrary, taking into account the fact that it crosses the property of third parties and occupies a portion of the
It seems to us that the finding of the district court is 'fully sustained by the evidence, and that the writ was properly allowed. It is recommended that the order allowing the writ be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the order of the district court allowing the writ is
Affirmed.