65 W. Va. 15 | W. Va. | 1909
The defendant owns and operates a railroad in Payette county, from Macdonald Station on the Loup Creek branch of the Chesapeake and Ohio Railway Company, to Price-Hill Station, a distance of about three miles. The relator, the Mount Hope Coal and Coke Compaixy, has opened up a coal mine on the line of defendant’s railway near Mount Hope Station, where it has built a substantial tipple, and is ready to mine and ship coal. The defendant owns its right of way in fee, of the width of one hundred feet. It is impossible for relator to reach the main track of defendant, as now located, for shipping its coal except by side track and switch connection therewith constructed, in part at least, upon defendant’s right of way. In June 1907, negotiations were begun between relator and defendant for side track privileges, and on June 25, 1907, the defendant’s general manager wrote the relator’s attorne}1, referring to the negotiations begun saying: “I at that time advised you the freight rate was ten cents per ton. This I beg to confirm. Since looking over the records I find the rate is ten cents per ton from the mines operating on this line, and as the Mt. Hope Coal Co. have
After this letter was received the relator began and completed the building of its tipple, extending the same out over the defendant’s right of way, some fifty feet, so as to reach the proposed side track, and also did the work of grading, furnished ties, steel rails, frogs, etc., for switch connection, and other material for the purpose of completing said side track and making the proper connection with defendant’s main track, expending therein, and in opening its mine, some seventeen thousand dollars. It does not clearly appear under what special contract or agreement with the defendant, if any, relator extended its tipple over on the defendant’s right of way, other than such as may be implied from said letter of June 25, 1907, and the negotiations which seem to have lead up to it; but it is alleged in the petition, and not denied, that the work of building and completing the tipple and of grading and providing rails, ties and other materials for the side track, was carried on by the relator with the knowledge and acquiescence of defendant, and with no objection thereto by it until in the latter part of December of that year, when defendant refused to connect up the switch with its main track except on condition that relator would enter into a contract with it embodying substantially the terms of the Norfolk and Western Railway Company contract. Pending these negotiations, however, a contract was drawn up by defendant’s counsel which relator was willing to execute, but which the defendant refused. Relator also proposed a contract in the form required by the Chesapeake and .Ohio Railway Company for
• Having failed to come to an agreement for such side track and connections the relator now seeks to compel defendant by mandamus, and b]r force of the statute, to make reasonable provision for the transportation qf its coal offered for transportation. It conceives that reasonable provision to be, according to its petition and the alternative writ, to require defendant to connect the said side track, constructed by relatof, Mount Hope Coal and Coke Company, at its mines, with the defendant’s railway line, or to permit said relator to make such connection; to furnish relator its due and proper proportion of the railway cars and equipment available for coal shipments from the region in which petitioner’s mine is located; and to place such cars upon said side track and remove the same when loaded, in the usual way in which said cars are placed and removed for other shippers along said line; and that it desist from discriminations in favor of other corporations named.
The defendant challenges the sufficiency of the alternative writ, and moves to quash the same,, and also files its return in writing thereto. The motion to quash is predicated upon three ' grounds: first, that the alleged right of relator is not based upon violation of any duty imposed upon defendant by law; second, that the alternative writ does not allege any facts or circum'stances upon which it can be determined whether defendant has refused to discharge its legal duty to relator; and third, because the alleged rights of relator are based wholly upon a duty or obligation arising out of an alleged contract or agreement between relator and railway company, which the court by mandamus has no power to enforce.
The first and third grounds are evidently based upon the erroneous theory that relator rests its right to relief upon its negotiations for a contract; or upon the proposition contained in the defendant’s letter of June 25, 1907. We do not so understand relator’s position, but on the contrary, that the right claimed is a statutory right. It is argued for defendant that
Without contract a railroad company has a public duty to discharge. Our statute, section 2364, Code 1906, upon which relator especially relies, provides that “every railroad corporation along whose line of railroad the industries of mining coal and manufacturing coke is carried on, shall without discrimination between or amongst shippers, and without unnecessary delay, make a reasonable provision for the transportation of all such coal and coke offered for transportation over its railroad, and no such railroad corporation shall discriminate in rates, distribution of cars or otherwise against or among shippers of coal or coke offered for shipment on its line or lines.'” Section 2366, imposes a penalty upon such railroad corporation, its officers and agents, who knowingly and willfully violate any of the provisions of that act. Because the negotiations for a contract failed, has the relator lost any of its statutory rights ? We think not. The statute does not contemplate any agreement of the parties. The mandate of the statute is that the railroad company shall, without any unnecessary delay, make a reasonable provision for the transportation of all coal and coke offered for shipment, a command which the railroad company cannot neglect without incurring the penalty of the statute. What will constitute such reasonable provision will depend, of course, upon the facts and circumstances of each individual case. But the statute makes the industries of mining coal and manufacturing-coke the special subject of railroad regulation. The extent and importance of these, industries in this state, in the judgment of the legislature, required this, and we think the statute should be given a construction broad enough to accomplish the purposes plainly intended. On the second ground of the motion, if we understand the purpose of relator in setting forth the prior negotiations for a contract, it was that they might serve as a substitute in part, at least, for allegations of fact necessary to show the reasonableness of the provision required by it, and we think they do serve such purpose. It might have been better, 'and but for these recitals of the alternative writ, it would have been necessary no doubt, in order to show the reasonableness of such provisions, for relator to have alleged and proven the prob
On the merits, the return of defendant admits all the facts which we deem material; and in the brief of counsel they say that they are ready to adm.it that under our statute defendant would be required to make a reasonable provision for the transportation of coal and coke, and under certain circumstances such reasonable provision would require the putting in -of switch connections; but they say that before defendant can be required to make switch connections with a private side track for relator, it must be alleged and proven that relator has sufficient product to offer for transportation to justify defendant in maintaining and operating such side track and switch; that they can be made and operated safely, on a practicable grade, and that relator has made provisions upon its own property to load the product of its mine. As we have said we think the alternative writ sufficient, in this particular.
The defenses relied upon by defendant in its return are: first, that relator seeks to compel defendant to enter into a contract with it, for the use and occupation by it, of a part of the defendant’s right of way, with its coal tipple and a side track; second, that if the first proposition be not involved, another object of the writ is to compel the defendant, against its will and discretion, to construct, or permit relator to construct on its private right of way a side track for the private use of the
In its first proposition we think the defendant wholly misconceives the purposes of the writ. While the writ recites the things done and negotiations had between the parties in the vain endeavor to come to an agreement, it contains no command that defendant enter into any agreement with the relator. The issues presented upon the writ and return do not call upon us to decide, and we do not decide, whether, as an original proposition, the relator eould compel defendant by mandamus to permit it to occupy, with its coal tipple, a part of the defendant’s right of way. This the relator has already accomplished, if not by express agreement, at least, by the acquiescence and consent of the defendant. The evidence shows that such occupancy by other coal operators has, in many instances, been permitted in the same coal field by the Chesapeake and Ohio Railway Company. And in its return to the writ, in this case, defendant makes no real objection to such ocpupancy of its right of way by relator, either with its coal tipple or with the proposed switch and side track, if only relator will accept the terms of the contract proposed by it in relation thereto, a condition not suggested or required by it in its proposition of June 25, 1907.
Tire only question of merit presented here is the legal one, covered by the second and third defenses; namely, whether under our statute defendant can be compelled by mandamus, under the facts and circumstances of this ease, and upon the conditions proposed by relator, to construct, or permit relator to construct the side track as proposed. It is conceded that reasonable provision may be commanded. ■ Whether the proposed side track can be operated safely upon a proper grade, or with profit to
But has the Court power by mandamus to compel defendant, upon terms, to construct and operate the proposed side track and switch connection on its right of way? We think it has. This question we do not conceive to be covered and concluded, as defendant contends, by Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403. The question there was whether the railroad company could be compelled by mandamus to. enter into a contract with relators, upon like terms and conditions contained in contracts with other private persons, permiting them to build and maintain a private and permanent warehouse upon the defendant’s right of way. The state court, construing the statute of Nebraska as conforming to the Constitution of the United States, had required defendant to enter into such a contract. The Supreme Court conceded the right of the railroad company to permit its grounds to be occupied by others with structures convenient for the receipt and deliveiy of freight upon its railroad, so long as a free and safe passage was left for the carriage of freight and passengers — citing Grand Trunk R. Co. v. Richardson, 91 U. S. 454; but says “but how far the railroad‘company can be compelled to do so, against its will, is a wholly different question.” But the court says in that case, “This court con
As we have said, the purpose of the present writ is not to command a contract for the building of a permanent structure bjr the relator on the right of way. The writ contemplates-no such object. It commands a reasonable provision for the transportation of relator's coal offered for shipment, which the statute authorizes. Such reasonable provision does not involve the permanent maintenance of the proposed switch and side, track. Hor does the writ command defendant to continue the same indefinitely as a permanent structure. Jones v. Newport News, etc. Co., 65 Fed. 739 (31 U. S. App. 92); Detroit etc., Ry. v. Interstate Commerce Commissioners, 43 U. S. App. 308. In Missouri Pacific R. Co. v. Nebraska, supra, the court emphasizes the fact that the “order in question was not limited to temporary use of tracks, nor to the conduct of the business of the railway company. But it required the railway company to grant to the petitioners the right to build and maintain a permanent structure upon its right of way.” In Jones v. Newport News, etc., Co. supra, referring to the latest Illinois ease relied upon says;
We quote from these decisions for the purpose of showing how differently the courts view the subject, where there is a demand for the erection of permanent structures for private use on a railroad right of way, and where as in this case the demand relates to a temporary structure to be placed thereon under the direction and control of the railroad company.1 We are of opinion, on the authority of these cases, that our statute requiring that reasonable provision to be made, justifies in part the writ in this case, and that unless we give this statute such construction, it will not accomplish the purposes intended by the legislature, and leave the subject entirely within the control and discretion of railroad companies.
But is relator entitled to all the relief commanded by the mandamus nisi? It commands first, “that you connect the side track constructed by relator, Mount Hope. Goal and Coke Company, at its mines, with your railway line, or permit said relator to make said connection;” second, “that you furnish to said relator, Mount Hope Coal and Coke Company, its due and proper proportion of the railroad ears, and equipment available for coal shipments from the region in which the. mines of said relator is
What then is the proper disposition to make of the case? The old and rigid rule, still adhered to in some jurisdictions, was that the peremptory writ of mandamus must strictly follow the command of the alternative writ; and that if all that is asked in the alternative writ cannot be granted, nothing that is asked can be granted. This rule is referred to, and recognized, in our own cases of Fisher v. Charleston, 17 W. Va. 628, 640; Doolittle v. County Court, 28 W. Va. 158, and Hebb v. Cayton, 45 W. Va. 578. See also 26 Cyc. 490, 491, and cases cited in notes. But this rule; in the later cases has been very much relaxed, and in those states where either by statute, or by the prevailing rules of practice, the right of amendment of pleadings has been extended to writs of mandamus, the practice now
The pleadings and proofs we think entitle the relator to a peremptory writ of mandamus, directed to defendant, commanding it, on condition that, before beginning the work, the relator shall pay or secure to be paid to it the cost and expense thereof, to commence forthwith and to complete as soon as practicable a safe and suitable side track, connecting the same by a switch with relator’s mines, using the location graded and prepared by the relator, and the ties, rails, and other materials furnished by it, as far as consistent with proper side track and switch construction, or permit relator to do said work in accordance with said specifications. It will therefore be so ordered; and also
Alternative Writ Amended. Peremptory Writ Awarded.