91 So. 7 | Miss. | 1922
delivered the opinion of the court.
This is an appeal from a judgment of the circuit court of Washington county, Miss., in a suit by the state, through its attorney-general, seeking to mandamus the Leland Southwestern Railroad Company or the Yázoo & Mississippi Valley Railroad Company to keep the track of the Leland Southwestern Railroad in a reasonably safe condition and to provide reasonable and safe equipment for the purpose of transporting freight and passengers over said line and to restore and place in proper repair such portions of said track as had been torn up. There was a judgment in the circuit court denying the mandamus, and from this judgment this appeal was prosecuted.
The petition filed by the attorney-general sets forth that the Leland Southwestern Railroad Company was chartered under the laws of the state of Mississippi in 1906, and was authorized to construct a road in Washington county, beginning at a point on the Yazoo & Mississippi Valley Railroad and extending eleven miles; that rights of way were secured by condemnation and deeds for said railroad, and it was thereafter leased to the Darnell-Love Lumber Company for the purpose of hauling logs from its lands to its mills at Leland, Miss., and also for the purpose of transporting freight and passengers; that the said lumber company recently ceased to operate the road and defendants fail and refuse'to operate it. The petition further alleges that while the Leland Southwestern Railroad Company
To this petition defendants’ filed a plea of general issue, and gave notice of matters to be proven thereunder. The
Under the plea of general issue by the Yazoo & Mississippi Yalley Eailroad Company, notice was given that on the trial of the case, proof would be offered to show that it did not own the Leland Southwestern Eailroad Company, nor any stock in same; that it had no ownership in the rails and other property of said railroad; that it did not have, and never had any running right over said railroad; that it did not operate and never had operated, said road; that said road had never been operated as a common carrier of freight or passengers, but was constructed solely as a logging road, and has been operated exclusively as a. logging road for the benefit of the Darnell-Love Lumber Company; that there was no traffic to be subserved by the operation of the road, and that said Yazoo & Mississippi Yalley Eailroad Company was under no duty to the plaintiff or any one else to maintain and operate said line of road; that four miles of the track in question had been taken up prior to the filing of the petition for mandamus; that the operation of the road liad been discontinued for more than eighteen months prior to the filing of said suit; that the road had been originally constructed for temporary use as a logging road, and that, to require the operation of said road, would necessitate the building of the entire road anew, at an expense Of not less than three hundred and seventy-five thousand dollar’s to build and equip it ready for operation; that the operation of same, owing to the small amount of freight and passenger business which would be handled over it, would necessarily be a heavy and continuous pecuniary loss, running into the thousands of dollars each year; that the expenditure of the money necessary to rebuild and equip the road for operation, and the operation of it would involve such a pecuniary outlay as would cripple the efficiency of the Yazoo & Mississippi
The testimony offered at the trial established substantially the following facts: That the Darnell-Love Lumber Company owned-two large sawmills at Leland, Miss., and also owned a large tract of timber near that place; that this lumber company, desiring to secure the construction of a railroad from Leland through this body of timber in order to facilitate the removal of timber from certain lands in that- vicinity, entered into a contract with the Yazoo & Mississippi Valley Kailroad Company, under the terms of which it was agreed that, for the purpose of constructing such a road, the lumber company would furnish, free of cost, to the railroad company a right of way for trackage purposes, and such additional lands as might be necessary for station grounds and other necessary purposes, and also furnish the ties and timbers for the construction of the road, and also do all the grading and construction work. The railroad company agreed to furnish and deliver free of charge all necessary rails, switches, frogs, and spikes, and to pay to the lumber company two thousand five hundred dollars for each mile of track built, and to pay each year the sum of one hundred and forty-five dollars per mile for maintaining the road. It was further agreed that cars loaded witlr logs were to be switched to the mills of the lumber company over the line of the railroad company at a charge of one dollar per car, and the lumber company agreed that all lumber manufactured from these logs would be shipped over the lines />f said railroad company. The lumber company was to keep the road in repair, and the agreement was to continue in force for a period of fifteen
It further appears from the testimony that the Leland Southwestern Railroad Company was chartered by the state of Mississippi on August 30, 1906, and capitalized at one hundred thousand dollars; that the subscribers for the stocks were four of the incorporators, who took one share of stock -each, and the Mississippi Valley Corporation, which subscribed for ninety-nine thousand five hundred dollars of the stock; that five hundred dollars of the stock was paid by the directors; that the cost of constructing the eleven miles of road, amounting to fifty-three thousand five hundred and six dollars and three cents, was paid by the Mississippi Valley Corporation; that the Mississippi Valley Corporation is a holding company and is controlled by the Illinois Central Railroad Company; that the Mississippi Valley Company is also a holding company, and owns a controlling interest in the Yazoo ■& Mississippi Val•ley Railroad Company; that the Leland Southwestern Railroad was constructed by the Darnell-Love Lumber Company, under the contract hereinbefore mentioned; that the total assets of the Leland Southwestern Railroad Company consisted of the money which defrayed the cost of the construction ; that it had no revenues and no source from which revenue could he derived; that it had no engines, passenger or freight cars, ho equipment of any kind, and possessed no property except its franchise rights and a right of way which had been furnished by the Darnell-Love Lumber Company; that in acquiring this right of way the right of eminent domain was exercised in one instance; that the railroad built by the Darnell-Love Lumber Company was a logging road; built without grading and on sawdust ballast; that no provisions were made for stations, telegraph or telephone lines in connection with the road; that the equipment used by the Darnell-Love Lumber Company in operating the road consisted of one engine and logging cars; that during the eleven years the road was operated
It further appears from the evidence that the Leland Southwestern Railroad was eleven miles long and was constructed almost midway between the main line and the Riverside division of the lazoo & Mississippi Valley Railroad Company; that there is no point 'of the Leland Southwestern Railroad which is more than five and a half miles from one of these lines of the Yazoo & Mississippi Valley Railroad Company; that during the entire existence of the Leland Southwestern Railroad Company only a few hundred acres of land on or adjacent to this road had been cleared and put into cultivation; that there is a very small population to be served by this road; that all the timber adjacent to this road had been cut and removed except such as was suitable only for cross-ties and staves; that much of the timber remaining on this land was as accessible to one of the main lines of the Yazoo & Mississippi Valley Railroad Company, as to the Leland Southwestern; that, if this road should be rebuilt and operated, the principal amount of freight available would consist of cross-ties and staves, which may or may not be manufactured; that it would take
It further appears that the line of the Leland Southwestern Railroad was originally constructed of second-class light rails, suitable only for a logging road; that during the year 1916 the Darnell-Love Lumber Company completed its operation and terminated its contract with the Yazoo & Mississippi Valley Railroad Company; that, prior to the filing of this petition for mandamus, three and a half miles of the road had been taken up; that the balance of the road was in such condition that no sort of train could be operated over it; that it would be necessary to entirely rebuild the whole line to put it into condition for the business of a common carrier; that the expense of rebuilding the road and providing facilities for the,operation thereof would be large, the exact amount depending upon the character or class of road constructed and service furnished.
The first question presented for decision is whether, under the state of facts disclosed by this record, an order will be issued compelling, or attempting to compel, the Leland Southwestern Railroad Company to reconstruct and operate this line of road? We think this question must be answered in the negative. It is clearly established that this corporation has no equipment of any kind, no funds, and no source from which it can derive funds, and that its sole asset is this abandoned, dismantled road, three and a half miles of which have already been taken up, and the balance in such condition that it cannot be operated. Without money or financial resources of any kind, this corporation would be unable to comply with an order to rebuild the road, or to operate it, if the track were replaced, and, under these circumstances, the issuance of such an order would avail nothing. A similar question was presented in the case of State ex rel. Little v. Dodge City, M. & T. Railroad Co., 53 Kan. 329, 36 Pac. 755, 24 L. R. A. 564, where the court said:
In State v. Colony Trust Co., 215 Fed. 307, 131 C. C. A. 581, L. R. A. 1915A, 549, the court said: “Here is a case where the line sought to be abandoned is not only not self-supporting, but its continued operation jeopardizes the successful operation of the entire system of which it is merely a part. Moreover, its continued operation in its present condition is dangerous do life and property, and there is no money or financial ability to improve its condition. Not only so, but there is little public necessity for its continued operation, whereas there is a great public necessity for the continued operation of the balance of the system. In such circumstances the railroad company may abandon such an unprofitable and irreclaimable part of its road, and neither the state nor unfortunate investors along the. line can justly complain. They cannot force a railroad company to do the impossible.” Jack v. Williams, 113 Fed. 823, 145 Fed. 281 ; Central Bank & Trust Co. v. Cleveland et al., 252 Fed. 530, 164 C. C. A. 446 ; Bullock v. State of Florida, 254 U. S. 513, 41 Sup. Ct. 193, 65 L. Ed. 222.
The next question presented is whether, by reason of the stock ownership of the Mississippi Valley Corporation, the • Leland Southwestern Railroad should be held to be a branch of the Yazoo & Mississippi Valley Eailroad Company, and if so, whether under the facts in evidence here, the Yazoo & Mississippi-Valley Railroad Company should be compelled by mandamus to reconstruct and operate this road. Conceding, for the purposes of this decision, that the Yazoo & Mississippi Valley Eailroad Company is in reality the owner of this branch line, we do not think the facts here justify the issuance of a writ of mandamus to compel it to reconstruct and operate the road.
Affirmed,