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and that the "said railroad of plaintiff has the value of $123,000, and the damage to the been located in the manner which will be contiguous land of defendant company is the most compatible with the greatest public | the sum of $500. The court further found good and the least private injury,” and “that against defendant company on the specific the taking of said strip of land is for a public facts alleged in defense. Thereupon the use, to wit, the right of way of said rail- | court made its preliminary order and judgroad of plaintiff." Defendant county wade no ment of condemnation, which was thereafter answer, and its default was duly entered. followed by its final judgment of conlemnaDefendant company answered, denying spe- tion. From this latter judgment, and from cifically that the plaintiff was incorporated the order denying its motion for a new trial, for the purposes alleged, and also denied defendant company appeals. practically all the averments of the com- The transcript comprises about 500 pages, plaint; avers that plaintiff was

that plaintiff was incorpo- jippellant's brief about 150 pages, and rerated "by the officers and agents of the spondent's brief half the number. ObviousMadera Granite Company for the conven- ly some way must be found to bring into ience, use and benefit of said Madera Granite reasonable compass the salient questions of Company;" a corporation operating a granite law and fact before us. There are certain quarry near the terminus of plaintiff's said principles of law governing condemnation railroad; that said railroad coinmenres "at cases, discussed by the respective parties, a fictitious place called 'Curtis Station and which may as well be disposed of here as terminates on the private land of said elsewhere. Madera Granite Company less than one inile 1. “The right of eminent domain may be distant; that there are no such stations as exercised in behalf of the following public 'Curtis' or 'McGowan' stations;" that said uses: (4) * * *


* * * railMadera Granite Company "is and has been roads.

Code Civ. Proc. $1238. for a long time extracting rock from its pri- Counsel for respondent contends that this rate land marked McGowan Station for declaration of the Legislature raises the premarket, and is and for a long time has been | sumption that the railroad in controrersy hauling the said rock by wagons and teams must be presumed to be a public use, and that over said McLennan road to the said railroad the burden of proving the contrary is upon of the Southern Pacific Coinpany, and from the defendant. It was held in Napa Valley there transports the same over said Southern R. R. v. Napa County, 30 Cal. 13:3, that "railPacific's railroad to market"; that plaintiff roads concern the public interest as matter was incorporated for the sole purpose of tak- of legal judgment; and however that concluing advantage of the law of eminent domain sion be opposed to the fact in the case at and of commencing this suit for the private bar makes no difference, the action of the benefit of the Madera Granite Company; that | Legislature on the question not being open said railroad does not terminate or com- to review by the judicial department of the mence at public places; that its termini are government.” So beld, also, in S. & V. R. R. on private grounds, and so situated as to Co. v. City of Stockton, 41 Cal. 117. In both

, . be of no benefit to the public; that defend- these cases, however, the railroads in question ant company owns all the land about the were authorized by special act of the Legisplace called Curtis Station, and the station lature, and it would have been an unwarrantcalled McGowan is upon lands of plaintiff', ed interference with legislative discretion for and no public roads lead to said station ex- the courts to inquire into the policy or wiscept said McLennan road, which terininates dom of the Legislature, in declarins that the at that station; that "plaintiff has no pas- building of these particular roads concerned senger cars, locomotives, or cars at all, nor the public interest. The early case of Condoes it intend to operate any to carry any tra Costa R. Co. v. Moss, 23 Cal. 324, is of this freight or passengers for the convenience of class, also. Another class of cases is found the public or otherwise"; that the purpose of in our reports, of which County of San Jateo building said railroad was to transport the v. Coburn, 130 Cal. 631, 63 Pac. 78. 621, is an rock of said quarry of the Madera Granite example. There the board of supervisors had Company to the Southern Pacific's railroad; determined the necessity of opening a public that plaintiff has made high fills and grades

road by a certain route, and later found it upon said strip of land in such manner as to necessary to bring the action to condern a prevent defendant from crossing said high- right of way over a portion of the land reway to and from its adjoining lands and to

quired for the road. "Roads" are among prevent the use of the west half of said high- the public uses declared by the Code section way for teams and wagons. The court made above cited. And it was held that the court findings substantially as alleged in the com- could not inquire into the necessity for the plaint: That defendant company is the own- highway, its location, and extent, as these er in fee of the land sought to be taken, were matters of a political or legislative (harsubject to the easement thereover for the Me- acter. But in that case it was shown that Lennan private road, which said easement the statute. (Pol. Code, $ 2681 et seq.) "has is owned by defendant county, and the same established a tribunal for determining these is a public highway; that the interest of de- questions. * * * If this tribunal profendant company in said strip of land is of ceeds in accordance with the provisions of these sections, it acquired jurisdiction to courts will disregard the legislative declaradetermine these questions, and its determina- tion that such use is public.

* * * If tion is not subject to collateral attack. In it can be shown by extrinsic evidence that a proceeding thereafter by the public to the end sought to be accomplished is not of condemn a right of way for this public road, a public character, but is solely for private the court is not authorized to review the ac- purposes, the condemnation will be denied tion of the board of supervisors in determin- as being in excess of the legislative power" ing these questions”—citing Wulzen v. Board -citing matter of Niagara Falls, etc., Ry. of Supervisors, 101 Cal. 15, 35 Pac. 353, 40 Co., 108 N. Y. 375, 15 N. E. 429. While it Am. St. Rep. 17; County of Sisikiyou v. is true that, when the uses are in fact public, Gamlich, 110 Cal. 91, 42 Pac. 468; Lewis the necessity or expediency of taking private on Em. Domain, SS 238, 239.See, also, property for such uses, the extent to which l'ool v. Simmons, 134 Cal. 621, 66 Pac. 872. the right may be delegated, and the inWhere, however, the public use is declared strumentalities to be used, are questions by general statute, enumerating the many Lelonging to the political and legislative objects that are thus designated, the courts branches of the government, nevertheless the are not precluded from determining from all question whether the uses are in fact public, the circumstances whether or not in the justifying the taking in invitum of private particular case the purpose is a public use. property therefor, is a judicial question to Lindsay I. Co. v. Mehrtens, 97 Cal. 076, 32 be determined by the courts. Lewis, Em

. Pac. 802. Consolidated Channel Co. v. C. inent Domain, $ 158. Our statute would P. R. R. Co., 51 Cal. 269, was such a case. seem to set the question at rest. Section Plaintiff sought by condemnation to procure 1241, Code Civ. Proc., declares that: “Becertain · lands to serve as a site for a beda fore property can be taken it must appear: rock flume to carry the dirt and gravel from (1) That the use to which it is to be apits mining claims, and also as a place of de- plied is a use authorized by law; (2) that posit for the tailings of its mine. The stat- the taking is necessary to such use." As ute (Code Civ. Proc. § 1238) gave the right the necessity for the taking of the particular

. of eminent domain in behalf of flumes among property must be made to appear by proof, other declared public uses. A demurrer to at least prima facie, the burden is upon the complaint was sustained. It was con- the plaintiff to show "that the taking is tended that the legislative declaration that necessary to such use." Lewis, Em. Domain, ilumes are public uses is conclusive upon § 426. It was said in Lindsay I. Co. v. the judicial department of the government. Mehrtens, supra : “Whoever, under the The court said: "Without doubt it is the claim of an agency of the state, would degeneral rule that, where any doubt exists prive the owner of any of his property by whether the use to which the property is pro- virtue of the exercise of eminent domain, posed to be devoted is of a public or private must show, not only that the use for which character, it is a matter to be determined

he seeks to appropriate it is a public use, by the Legislature, and the courts will not but also that the Legislature has authorized undertake to disturb its judgment in this the taking of property for that particular regard. This question was fully discussed use, and in the mode in which he is seeking and the doctrine established in the case of to appropriate it.” Unquestionably the ownS. & V. R. R. Co. v. City of Stockton, 41 er of the land sought to be condemned may Cal. 147. But in the same case an exception show that the use and its purpose are pri

he general rule is recognized. It is vate, and not public. The existence of the said: 'A case might, indeed, be presented in corporation plaintiff proves no more than which it might appear, beyond the possibility would the existence of a natural person seekof question, that a tax had been imposed, ing to condemn under authority of the statute. or the property of a citizen had been taken 2. It was said in County of Madera V. for a use or purpose in no sense public;' or, Raymond Granite Co., 139 Cal. 128, 72 Pac. in the language of Chancellor Walworth 915, approving the doctrine laid down in (5 Paine, 159), 'where there was no founda- Sherman v. Buick, 32 Cal. 253, 91 Am. Dec. tion for a pretense that the public was to 577 : “Whether a way be public or private be benefited thereby'; and in such case it does not depend on the number of people would be our duty to interfere and offer a who use it, but upon the fact that every one relief.” In discussing the general rule it may lawfully use it who has occasion." Mr. was said in County of San Mateo v. Coburn, Lewis states the rule as follows: "It is supra: “It is not to be held, however, that


not necessary that the entire community, or the mere declaration by the Legislature any considerable portion of it, should directthat the object for which private property ly participate in the benefits to be derived may be taken is a public use will preclude from the property taken.” Lewis, Em. Dom. the owner from contesting the right to de- $ 161. The public use required need not be prive him of his property. If it is sought of the whole state or any considerable porto condemn the property for a use which is tion of it, but the use and benefit must be in evidently private, or to accomplish some common, not to particular individuals. Evpurpose which is not of a public character, ery public use is in more or less degree local and benefits a particular section more than | poration shall restore the

road others. This is true of railroads, as well


thus intersect. as of ordinary highways. The cases ed, to its former state of usefulness as near numerous sustaining this rule. See notes as may be, or so that the railroad shall not to Lewis, Em. Dom., supra. See, also, Lind- unnecessarily impair its usefulness or injure say I. Co. v. Mehrtens, supra.

its franchise." Arcata v. Arcata & M. R. R. 3. Neither the length of the road nor the R. Co., 92 Cal. 639, 28 Pac. 676; S. P. R. R. fact that it is a branch or spur bears any Co. v. Ferris, 93 Cal. 203, 28 Pac. 828, 16 L. necessary relation to the question of public R. A. 510. See, also, Montgomery v. Railway use or of the public interest to be subserved | Company, 104 Cal. 186, 37 Pac. 786, 25 L. R. by it, except possibly as a circumstance bear- A. 651, 43 Am. St. Rep. 89. Mr. Lewis (secing upon the alleged fact that the road is tion 270) cites Springfield v. Conn. River R. solely for the private use of plaintiff. Contra R. Co., 4 Cush. (Mass.) 63, to the effect that Costa Railroad v. Joss, supra. Short roads authority to construct a railroad between as connecting links between independent rail- certain termini does not authorize the aproad systems, or as branches and feeders to propriation of a highway longitudinally. He established systems, are often necessary and adds, however, that “the Legislature may of fall within the general rules governing con- course authorize the condemnation of addidemnation quite as completely as main lines tional easements in public highways, as for of road. It is the public purpose that is to railroads, electric lines,” etc. This latter augovern, and not the length of the road, thority is clearly given by our statute. whether it is a road connecting two estab- 5. Some question arose in the case as to lished roads or a branch of an established the right of the defendant company to inquire road, or a branch connecting with another into the good faith of the promoters of plainbranch road. Appellant cites section 468 of tiff company in forming the corporation and the Civil Code and claims among its errors to show that it was in fact not a bona fide of law that the articles of incorporation of corporation. So far as we can discover deplaintiff were inadmissible because the above fendant company was permitted to introduce section provides that commercial railroads | such evidence as it had which bore upon the shall be at least five miles long, and in this question, and, if it was error to admit it, apcase it was impossible to comply, as the road peilant cannot complain. Possibly it was adis less than one mile in length. This section mitted upon the theory that it bore somewhat requires every railroad corporation, every upon the question that the use, as claimed year after it has begun construction of its | by appellant, was in fact private. Appellant road, “to complete and put in full operation states distinctly, “we do not attack Madera at least five miles of its road, until the same Railroad Company's articles as a corporais fully completed,” failing in which "the tion,” and we may accept this declaration as right to extend its road beyond the point then conclusive. We do not think, however, that completed is forfeited." This section is not the good faith of the corporators in forming to be construed as limiting the right to con- the corporation can be called in question colstruct a road to one not less than five miles laterally in this proceeding so as to in any in length. The most that could be claimed wise affect the validity of the corporate exfor the section is that, when the road is five istence. The dissolution of the corporation miles long or more, the corporation must or the forfeiture of its franchise can only comply with the statute.

be accomplished by quo warranto proceedings, 4. The meaning of that part of subdivision as was the case of People v. Pittsburgh R. R. 3, § 1241, Code Civ. Proc., is called in ques- Co., 53 Cal. 694; or under the provisions of tion, reading: "If already appropriated to Code Civ. Proc. $ 803 et seq. (People v. Dashsome public use, that the public use to which away Association, 84 Cal. 114, 24 Pac. 277, 12 it is to be applied is a more necessary public L. R. A. 117). For a discussion of the right use.” The point has reference to the Mc-| to collaterally attack the validity of the corpoLennan road over which plaintiff seeks a right ration charter, see Kansas Railway Company of way, and it is contended by appellant that v. Coal Co., 161 No. 288, 61 S. 1. 6S4, 51 L. R. only by direct and specific legislative enact- A. 936, 84 Am. St. Rep. 717. Whether or not ment and authority can property be taken the franchise will be taken away or the exerwhich is already applied to a public use; that cise of corporate acts be enjoined, upon a the question whether or not the intended use given state of facts, are questions not necesis "a more necessary public use" is a ques- sarily determinative of the question here, tion for the Legislature to decide, and not namely, whether or not the corporation is in the courts. We are referred to a discussion fact seeking only by means of the right of of the question by Mr. Lewis, in his work on eminent domain to enjoy the property sought Eminent Domain (sections 262–276). Conced- to be taken, purely as a private use, and not ing the general doctrine to be as illustrated in the interest of the public. The corporaby Mr. Lewis, the Legislature of this state tion may have a valid existence and may has specifically and directly authorized rail- successfully resist all efforts to revoke its road corporations to "construct their roads franchise, and yet the court may inquire across, along or upon


whether the particular use involved in tbe Avenue or highway; • but the cor- | condemnation is public or private. If the use

be private, with which the public have no concern, and in which it has no interest, condemnation will be refused, regardless of the general right of the corporation to condemn by virtue of its corporate existence.

In view of the foregoing principles it remains to notice the facts developed by the evidence, and certain questions connected therewith and certain assignments of error. It appears that, by ordinance 74 of the supervisors of Madera county, the Madera Granite Company was authorized to build a railroad along the McLennan highway, and that company commenced the work of construction, but was enjoined from its further prosecution, or using this highway for railroad purposes. Subsequently, to wit, June 6, 1903, plaintiff company was duly incorporated, and thereafter it petitionell the board of supervisors for a franchise to construct and operate a railroad along the McLennan highway, which was accompanied by a waiver on the part of the Madera Granite Company of its franchise granted by ordinance 74, and on July 11, 19903, ordinance S6 was passed by suid board of supervisors, granting the petitin. It is now claimed that the Madera Granite ('ompany did not convey to plaintiff its right of way granted it by ordinance 74 or any of its railroad property, and that the property under section 494. Civ. Code, still belongs to the Granite Company, and heilies plaintiff has no standing in court. Section 131, Civ. Code, relates exclusively to sales in:] transfers of property of one railroad kollpany to another railroad company. The Madera Granite Company was not organized as a railroad corporation, and had no authority by its charter to engage in railroad building, and probably for that reason the court enjoined its attempt to exercise the powers of a railroad corporation. IIowever this may be, the section has no application to the facts, and hence we cannot see what cause defendant has for complaining that plaintiff is violating, if it is doing so, the private rights of the Granite Company.

Appellant contended at the trial for the right to introduce evidence showing that plaintiff, in constructing its road along McLennan highway, practically destroyed its usefulness to defendant company as an abutting owner all user of the highway. The trial court admitted the evidence offered in support of this defense, and in rebuttal thereof findings were made upon the issue favorable to plaintiff. The evidence was conflicting, with suflicient to support the findings.

There was considerable evidence tending to the point that the main object in building the read was to enable the owners of the Madera Granite Company to market its product. Circumstances may arise where it becomes of public benefit for branch railroads to be built primarily to reach some important industry about to be inaugurated or that is struggling along under difficulties for want of transportation facilities. The fact that the advant

age of such road inures to a particular individual or a class of individuals will not render the use any the less public. And the fact that the stockholders of the Madera Granite Company were also stockholders of plaintiff company does not prove that the contemplated use is a private use. Lindsay I. Co. v. Mehrtens, supra. The doctrine, as we believe it to be, is well stated in Ulmer v. Lime Rock Railroad Company, 08 Me. 581, 57 Atl. 1001, 66 L. R. A. 387. That was a condemnation suit to condemn a right of way over certain land for a branch road to a lime quarry. The court said: “The mere fact that the primary purpose of such a branch is to accommodate a particular private business enterprise is by no means a controlling test. The character of the use, whether public or private, is determined by the extent of the right of the public to its use, and not to the extent to which that right is or may be exercised. If it is a public way in fact, it is not material that but few persons enjoy it. When such a branch track is first constructed, and the right of way necessary therefor is taken, it may in fact be used only for the business of the plant to which it is constructed, because at that time no other business enterprise may exist in that vicinity to furnish freight for transportation ; but in the future other enterprises may spring up, either upon the line or the extension thereof, so that a branch track which in the first instance is primarily constructed for the accommodation of one may become of equal accommodation, benefit, and use to others. The tests decisive of this question as to whether a branch track of this character is to be constructed and operated for public or private purposes, deducible from the great weight of authority upon the question in this country, are these: If the track is to be open to the public, to be used upon equal terms by all who may at any time have occasion to use it, so that all persons who have occasion to do so can demand that they be served without discrimination, not merely by permission, but as of right, and if the track is subject to governmental control, under general laws as are the main lines of a railroad, then the use is a public one, and the Legislature may grant the power to exercise the right of eminent domain to a corporation which is to construct and operate such track; and, if the purpose of the rail. road corporation in building any particular branch track is to operate the same in conformity with these requirements, then the power granted by the Legislature may be exercised in that particular case. This is in accordance with the almost unbroken line of decisions of the appellate courts of the various states of this country, a brief quotation from a few of which may be advantageous.” Citing many cases,

Our statute does not define what is meant by "steam railroads," nor does it make any distinction between main lines and branches, A corporation may be formed to build a par

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ticular road which is to connect with an- gers to and from our store at Knowles spur. other road and become a branch thereof. Q. Do they run regular trains on that spur? Such a corporation would have the right to A. Well, not regular; no, sir. Not every day. condemn land for its right of way. Mr. If they have freight to get or take they run Lewis says: “There appears to be no reason there. Q. Do you always notify them when why lateral roads should not be constructed, they come down there (meaning Knowles if they are required to serve the public, as spur]? A. Not always, they come there (meanoccasion requires." Lewis, Em. Dom. $ 171. ing Knowles spur] often without being notiThere was evidence that the Madera Granite fied. Q. But do they run reguiar irains? A. Company was not the only person and its They are supposed to come there whenever granite enterprise the only industry that we have anything to ship. If there is any one might be served by this branch road. The de- to go, they never come after them. * * fendant company employed a large number Knowles station on the Southern Pacific map of men, as did the Madera Granite Company. is where the Knowles spur starts from the There was evidence that a considerable busi- Southern Pacific line.” In the answer of the ness in marketing wood for fuel might be defendant company this Knowles spur is redone by this road. There was evidence also ferred to as "the railroad of the Southern that a grazing country surrounded this road Pacific Company," and the road in question and shipments of cattle might be made by is referred to as commencing "at the said this road; that the road passed througlı gran- Southern Pacific Raliroad,” and that the sole ite land which would with this branch road purpose of said Madera Railroad is to carry be profitable to work; that it would be an ad- the rock of the Madera Granite Company ditional convenience to the neighborhood gen- from McGowan station "to the said railroad erally. It is made the duty by law for the of the Southern Pacific Company on cars prerailroad company to operate its cars "for the pared by the said Southern Pacific Company transportation of all such passengers and for that purpose." There was much evidence property as

offer or is offered for pro and con the question whether the use was transportation,” etc. (Civ. Code, $ 481); and private or public-sufficient, we think, to have "in case of refusal * * to take and

supported a finding either way by the court. transport any passenger or property or to In such condition of the record we must updeliver the same


must pay the par- hold the view of the evidence taken by the ty aggrieved all damages,” etc. (Civ. Code, court. That plaintiff company has now no $ 482). Failure to operate its road as pro- cars with which to operate the road ; that it vided by the act of April 15, 1880 (St. 1880, may or intends to arrange with the Southern p. 13, c. 57), makes subject to forfeiture the Pacific Company to operate the road with its right of the corporation or the individual own- cars; that at the present time little or no ing the road to operate it. Section 17, art. business will come to the road except from 12, of the Constitution, provides, among oth- | the Madera Granite Company; that the preser things: “Every railroad company shall ent or prospective volume of business for the have the right with its road to intersect, con- road from all sources would not justify its nect with or cross any other railroad, and construction ; that the owners, agents, and shall receive and transport each the other's attorneys of the Madera Granite Company passengers, tonnage and cars, without delay were active participants in organizing plainor discrimination.” Organized, as plaintiff is, tiff company-are facts having some bearing, to do a general carrier business, it can be perhaps, upon the question of the nature of compelled to exercise its assumed powers and the use, but are by no means conclusive. duties. Appellant contends that the Knowles Legitimate railroad enterprises are often proswitch or spur, with which the branch in ques. jected into regions of little present profit, and tion is to connect, is no part of the main line | ultimately prove unfortunate investments by of the Southern Pacific Company ; that it is lack of anticipated business. But they were a branch of the Raymond branch of the nevertheless public in their objects; and we Southern Pacific Company, and is but a have seen that a public use may be shown switch running to defendant company's quar- where only a single enterprise is primarily to ry. There is evidence that the Knowles spur be benefited, and that the fact that the corwas built by the Southern Pacific Company; porators in another company which is the that the right of way was obtained by de-chief beneficiary are also corporators of the fendant company, and conveyed to the South- railroad company is not at all conclusive ern Pacific Company for a consideration paid as to the character of the use. by that company in switching charges; that The point is much urged that the Madera it was constructed in 1889 and has been Granite Company and plaintiff were composed in use ever since by the Southern Pacific of the same persons, seeking thus not only Company Witness Knowles testified: "The to discredit the plaintiff company, but also Knowles spur is their track. Q. Mr Knowles, the good faith and objects of its corporators. is there a regular train service to Knowles' | Sufficient to say, as was said in Kansas Railspur? A. No, sir; there is no train service; way v. Coal Co., supra: “There is nothing in only freight service, that's all. They carry the letter or spirit or policy of the law which passengers to Knowles spur in freight or box | prohibits the same persons from forming and cars or whatever they have to take passen- | conducting two different corporations; one

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