Pere Marquette Railroad v. United States Gypsum Co. , 154 Mich. 290 ( 1908 )

Grant, C. J.

{after stating the.facts). Counsel for the petitioner rested his case upon the proposition that the statute casts the burden of proof upon the respondent to disprove the facts stated in the petition. The statute provides :

“On presenting such petition to said court or the judge thereof at chambers, with proof of service of a copy thereof and due notice as aforesaid, all persons whose estate or interests are to be affected by the proceedings may show cause against the prayer of the petition and may disprove any of the facts alleged therein, and said court or judge shall hear the proofs and allegations of the parties and if ' no sufficient cause is shown against granting the prayer of the petition, said court or judge shall make an order appointing three disinterested and competent freeholders as commissioners to ascertain and determine the necessity for taking such lands, franchises or other property and to appraise and determine the damage or compensation to be allowed to the owners and persons interested,” etc. 2 Comp. Laws, § 6245.

The use mentioned in the statute must be a public use, and the necessity a public necessity. The resolution of the board of directors in New York city made no reference to public use or public necessity, but only to the expediency and necessity of developing its own business. There is nothing in any of the proofs offered by the petitioner to indicate a public use. The only allegation in the petition upon this point is “that the taking of the lands and property above particularly described ig necessary for the public use.” It is repugnant to common sense and justice that the mere allegation that one’s land is necessarily required for the public use by a corporation is sufficient to cast upon him the burden of showing why it should not be taken, and to show those facts, many of which are peculiarly within the knowledge of the petitioner. The statute provides for framing an issue. When the allegations are admitted, or, as held by some authorities, not denied, proof of the facts alleged is not essential; but, where the answer expressly traverses them, the effect of the statute simply is to put the petitioner to its proofs. This is nearly the universal holding of the courts. The learned counsel for the petitioner cites but one case to the contrary. In re New York Bridge Co., 67 Barb. (N. Y.) 295. Not only was this case not followed by the courts of New York, but was overruled by the following eases. In re New York Cent. R. Co., 66 N. Y. 407; Rochester R. Co. v. Robinson, 133 N. Y. 242; 2 Lewis on Eminent Domain (2d Ed.), § 397, note 78. The same is held in Carolina, etc., R. Co. v. Manufacturing Co., 132 N. C. 644; Tracy v. Railroad Co., 80 Ky. 259; Wisconsin Cent. R. Co. v. Cornell University, 52 Wis. 537.

This proposed side track terminates at the line between the lands of the Gypsum Company and Mr. Dummer; at least there is nothing in the petition or proofs to show that it is to extend further. There is no allegation in the petition nor showing by petitioner’s proofs that Mr. Dummer is at the present time engaged in any business in which the public is interested, or that the products of his manufactory are required for public use, or that any products he may manufacture cannot reach the market or the railroad in other ways. There is nothing in this case to indicate that the proposed side track can or will be used by anyone except Mr. Dummer. As is well stated by counsel for the respondents, there is nothing to indicate that it would serve any public use, unless the mere fact that it accommodates Mr. Dummer’s mill makes the use a public one. Petitioner’s entire case is barren of any allegation of facts or proofs upon which the court could base a finding that the property of the defendant is necessary for a public use.

If we resort to the contract and the statements made by the attorney for the petitioner, as testified to by Mr. Keeney and not contradicted, not only do we not find any evidence of a public use, but we find that the railroad company did not consider that the land of the gypsum company was required for public use, but for Mr. Dummer’s own interests, and that it refused to take any proceedings contemplated by the statute until Mr. Dummer had made a contract with it to institute proceedings in the name of the railroad company, to pay all the expenses, to control the litigation, and to provide that his own attorney, rather than the attorney for the railroad company, should institute and manage the litigation. Under some of the authorities cited in behalf of the petitioner, it is correctly held, without doubt, that agreements between railroad companies and manufacturers that the manufacturers will pay part or even all of the expenses of the condemnation and of the award, are not conclusive against the public use and the public character of the proposed improvements. Hairston v. Railway Co., 208 U. S. 598; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155; St. Louis, etc., R. Co. v. Petty, 57 Ark. 359 (20 L. R. A. 434). The public character of the work may be the same, although it is assisted by private contributions. It must, however, be shown that the work will contribute to the public interests and enhance the financial welfare of the people.

This court held in Mansfield, etc., R. Co. v. Clark, 23 Mich. 519, that the finding by a jury that “it is necessary that said real estate and property should be taken for the purposes of said company ” is not a finding of necessity for the public use. Neither was a finding by the jury “that it was and is necessary to take and use said land for the purpose of operating and constructing said railroad by said company” held a sufficient finding of the necessity to take the property for the public use. Grand Rapids, etc., R. Co. v. Van Driele, 24 Mich. 409. There are many authorities holding that statutes of condemnation do not apply to a siding for the accommodation of a single manufactory. Pittsburg, etc., R. Co. v. Iron Works, 31 W. Va. 710 (2 L. R. A. 680); Chicago, etc., R. Co. v. Wiltse, 116 Ill. 449; Kyle v. Railway Co., 3 Tex. App. (Civ. Cas.) 518 (4 L. R. A. 275); Weidenfeld v. Railroad Co., 48 Fed. 615; In re Niagara Falls, etc., R. Co., 108 N. Y. 375.

The contract between Dummer and the petitioner, considered as a whole, shows conclusively, in my judgment, that this proposed side track is for the sole benefit of Mr. Dummer, and to increase the business of the petitioner. This is especially shown by two paragraphs, to which I now refer. In paragraph 4 it is agreed:

“The Pere Marquette and its lessee and assigns shall have the right to use the whole or any part of said track for other business than that of the second party when it will not interfere with the second party’s business, without any allowance therefor to the second party, and without restriction except as herein stated.”

Can a side track or any part of a railroad be intended for the public use which one private party can control to the exclusion of all the others? The question answers itself. In paragraph 9 it is provided that, if Mr. Dummer shall cease to operate his mill for a year, the railroad company may terminate the agreement, and, if it does, it “ shall convey to the second party [Dummer] the legal title to the right of way for said track obtained at the expense of the second party under the provisions of the second paragraph hereof.” It seems to be contended on behalf of the petitioner that this does not mean the right of way across the land of the gypsum company. It is difficult to understand what else it does refer to, as the proposed side track is entirely on the gypsum company’s land.

We think that the probate court reached a correct conclusion ; and its decree is affirmed, with costs.

Blair, Montgomery,. Ostrander, and Hooker. JJ., concurred.