Mississippi and Tennessee Railroad Company v. Devaney.

the opinion of the court in the case, there was "no necessity for the change;" clearly indicating thereby, that, if there had been a necessity for the change, the decision of the court would have been different. The facts of this case differ widely from those of the case under consideration: here, the bridge and the road over it had been destroyed by fire, and their depots isolated from the terminus of their track on the north side of the Yallobusha river. The cars were in full operation over their road, through the street, to their depot, in the case of the Little Miami railroad, and they sought to change their track, as a matter of convenience, clearly. There was no necessity for a change, or for the exercise of implied powers. It may not be amiss to state here that the decision in the Ohio case just referred to caused the passage, by the legislature of Ohio, of an act authorizing all railroad companies in the state, or to be constructed, the power to alter, relocate or repair their roads, by tak ing any lands they saw proper in invitum, upon the same term: specified and prescribed by their charters, viewing the decision of the court, in 17 Ohio, as oppressive and detrimental to the grea railroad interests of that state. In the next case of The State ▾ Norwalk and Danbury Turnpike Company, 10 Conn. 157, th court, in deciding that the company had not the right to chang their toll-gates at discretion, after they had been located, uses thr. language: "As the power is not given to commissioners, but to proprietors, whose interests may not always coincide with the convenience of the public, to be exercised at their discretion, this authority ought not to be extended by construction." In this decision, the judge who delivered the opinion of the court gives as a reason for the determination of the court, that the rights of the public had to be considered and recognized; that by construction the company should not have their powers enlarged. The facts of the case showed there was no necessity for the change of gates.

The court, in the case of Turnpike Company v. Hosmer, 12 Conn 364, affirms the case of The State v. Norwalk and Danbury Turn pike Company, 10 id., and uses this language: "The position of the gates upon a turnpike road is a matter in which the company on one side, and the public on the other, are deeply interested." "That property and dwelling-houses must be affected by such a change or alteration." "It may, indeed, be slight, but still it is entitled to the protection of the law against a trifling injury, unless a fair construction of the charter authorizes the company to inflict it." In

Mississippi and Tennessee Railroad Company v. Devaney.

the case of Griffin v. House, 18 Johns. 397 (a turnpike case), this language is used in the opinion of the court: "That, when the discretion had once been exercised, the power is exhausted, and cannot be revived, so as to authorize the company to change and move their gate to suit their convenience, without some strong and mani fest necessity to warrant it; that the company had acted capriciously, and have lost sight of the trust reposed in them, by changing several times the location of the easterly gate, contrary to the first opinion, and without any apparent necessity for it."

The last case cited in this branch of the case before us, is The Louisville and Nashville Branch Turnpike Company v. Nashville and Kentucky Turnpike Company, 2 Swan, 182. The court, after holding that the company could not change their gate, because the change would affect the right of the public, uses this language: "When the charter vests corporations with discretionary power in reference to the exercise of a particular right, and in the exercise of this discretion, so conferred, they may make an election (place for a toll-gate), and this election is final and conclusive." "Notwithstanding this is so, however, the corporation may, if it chooses, abandon the use or enjoyment of the rights secured by election, if no detriment thereby accrues to the public."

The courts, in the cases of Turnpike Co. v. Hosmer and Griffin v. House recognize and affirm the rule contended for by counsel of defendant in error, but at the same time give their reasons for the enforcement of the same - that there was no necessity shown in either case for the changes of gates sought to be made by them; and that the changes, if made, would work injustice to the "public," who had rights that could not be invaded "without a manifest necessity for such an invasion.”

In the case in 2 Swan, 182, last mentioned, the court gives the reason for the rule of construction contended for by defendant's counsel, in the remark that the corporation can "abandon the use or enjoyment of the rights secured by election, if no detriment thereby accrues to the public;" thereby clearly intimating, that if no detriment should accrue to the "public" by a change of gates (the court evidently means, by the use of the word "abandon," that by the abandonment of one gate they had a right to erect another in its stead), the reason for the rule ceases; and that such alteration of a gate would be legal, although there was no delegated power in the charter to make an alteration, after once locating it.

VOL. II.-78

Mississippi and Tennessee Railroad Company v. Devaney.

We can see no reason why railroad companies should not be permitted to alter the location of their depots and their tracks, when no detriment to the public ensues therefrom. If by the alterations the interests of the public are subserved, more strongly the reason why the rule contended for by counsel for defendants should not be enforced against them. Certainly it should not be done if the facts of the case under consideration show this was done.

Counsel for plaintiff in error cites us to the cases of the N. O. Carrollton Railway Co. v. Second Municipality of New Orleans, 1 La. An. 128; Knight v. Carrollton Railway Co., 9 id. 284; in Railway ex parte, 2 Rich. (S. C.) 434; and South Carolina Railway Co. v. Blake, 9 id. 229; and rely with confidence upon these cases, as decisive of their view of the question under consideration.

In the first case above cited, the supreme court of Louisiana held that the Carrollton Railway Company, having a charter to construct a railroad between the town of Carrollton and the city of New Orleans, gave them the implied right or power to construct a branch railway, to a lot upon which they had erected a depot and turntable, in another part of the city of New Orleans, and off their direct line to their depot, as the terminus of their road.

The court uses this language in their opinion: "The right to establish such a depot results necessarily from the right to establish and maintain the road. Consequently, they had the right to run their branch road to it, without any direct authority in their charter authorizing the making of two depots, or a branch road to one of them."

This conclusion was arrived at, notwithstanding the objections here urged were made and argued with signal ability by the distinguished counsel for the city of New Orleans.

This case was afterward cited and affirmed in the case of Knight v. Carrollton Railway Co., 9 La. An. 284, wherein the same questions were involved. This case has many of the leading features of the case before us.

The case of Railway ex parte, 2 Rich. 434, was an appeal from the court of common pleas, the petition of the railroad company having been denied by the court, for the reasons, "that if it can be shown that the company has no right to take the property, or where the public necessity is doubtful, in both of which cases law and right are concerned that it should not be taken." 66 The company not having the power to take the property of citizens at their discretion,

Mississippi and Tennessee Railroad Company v. Devaney.

and the necessity for the taking the lands of the respondent, for any of the purposes mentioned in the charter, not having been shown to the court, the motion to have commissioners appointed to survey the land and assess damages must be refused."

This order was reversed by the supreme court of South Carolina. Chief Justice RICHARDSON, delivering the opinion of the court, says: "The railroad company had the same power to acquire land, either by grant or by compulsory proceedings, for the purpose of varying, altering and repairing their road, as for the original purpose of locating and constructing it."

The same opinion was adhered to by the court in the case of the South Carolina Railway Company v. Blake, 9 Rich. 229, with a qualification of the rule adopted in 2 Rich., affixing conditions not affecting the principles upon which the cases were decided.

Counsel for defendant in error insists that the rulings of the South Carolina supreme court are anomalous, and "must be attributed to the peculiar laws of South Carolina, that private property may be lawfully taken for public use without compensation," "and should not be received as authority in a state with a constitution like ours."

Although it was decided in South Carolina that private property could be taken for public use, without compensation, in the case of The State v. Dawson, 3 Hill, 100, there being no provision in their constitution against such rights of the state, if the decision of the court is just, upon principle, it cannot be affected by the clause in the constitution of South Carolina referred to, because the charters of these companies contain provisions that the companies "shall not take private property without just compensation is first made therefor;" and the mode of obtaining private property, when the same cannot be purchased at private sale, is pointed out in their charter. No effort was made by the companies to obtain the lands of the parties resisting the right, other than by the manner provided therein.

By recurring to the proof it will be seen that the railroad of the plaintiffs in error had been completed for two years, when their bridge (a "costly structure") over the Yallobusha river was destroyed. At the same time (June, 1863) the bridge of the Mississippi Central road, over the said river, was destroyed by the military forces by fire. That, after the close of the war, both companies were so embarrassed by the loss of their rolling stock, and

Mississippi and Tennessee Railroad Company v. Devaney.

by the destruction of nearly all of their bridges, depots, etc., etc., that, neither company being able to build their bridge over the Yallobusha river, they determined to build a joint bridge on the piers of the Mississippi Central railroad bridge, left standing, which they did. Permission from the Mississippi Central Railroad Company to the plaintiffs in error was granted in this contract for the company to run their cars over a few hundred yards of the track of the Mississippi Central road, north of the Yallobusha river, for the purpose of enabling the plaintiffs in error to run their trains over the partnership bridge to their depot in the town of Grenada.

These facts show that rival railroad companies, who had no interests in common, were driven, from necessity, on account of their crippled finances, caused by the war, to unite their limited means for the purpose of repairing their roads in this particular. If either company could have erected a new bridge, there certainly would not have been a uniting of their means to build one bridge. If the Mississippi and Tennessee Railroad Company could have rebuilt their bridge, and the Mississippi Central Railroad Company could not have erected a new one, incalculable advantages would have accrued to the plaintiffs in error, by their being enabled to transport their passengers and freight trains directly to their depot in Grenada, connecting the Mississippi Central track south of the river, thereby controlling and forcing freights and passengers, both ways, over their road.

It will be observed from our inspection of the diagram in the record, that it was impossible to connect the track of the two roads, unless the Mississippi and Tennessee Railroad Company should build a new track, of about five-eighths of a mile in length, from their old track, on the north side of the river, to the tracks of the Mississippi Central railroad, a few hundred yards south of the partnership bridge. This road could not be made unless it passed through the land of the defendant in error. Application was made to Devaney, by the Mississippi and Tennessee Railroad Company, to purchase the right of way over said land for the contemplated track; the defendant in error refused to sell the right of way to the company. Under this state of the case it would seem the only alternative left to the plaintiffs in error was to rescind their contract with the Mississippi Central railroad for the erection of the partnership bridge, and surrender their depot, in the town of Grenada, and establish a depot, on the north side of the Yallobusha river,