ERROR TO THE SUPREME COURT OF THE STATE OF WISCONSIN
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; Lurton took no part in the decision of this case
MR. JUSTICE HUGHES delivered the opinion of the court.
This proceeding was instituted by the Chicago and Northwestern Railway Company to take land for a spur, the construction of which had been ordered by the Railroad Commission of the State. The land was owned by the Union Lime Company, the plaintiff in error, and the application was resisted upon the ground that it was sought to be taken for a private, and not a public, use and therefore that its taking would operate as a deprivation of the property of the plaintiff in error without due process of law and a denial to it of the equal protection of the laws contrary to the Fourteenth Amendment. This contention was overruled by the Supreme Court of the State which affirmed the judgment in condemantion (152 Wisconsin, 633), and this writ of error was sued out.
The proposed track was to form an extension of an
existing spur, owned and operated by the Railway Company, which leads from its main line to the quarries and kilns of two lime companies; one of these companies is the plaintiff in error at whose works the spur now terminates. Beyond these works lie those of the Eden Independent Lime and Stone Company which applied to the Railroad Commission for an order requiring the Railway Company to extend the spur to its plant. It is provided by § 1797-11m of the Wisconsin Statutes that every railroad shall acquire the necessary right-of-way and shall construct and operate a "reasonably adequate and suitable spur track" whenever it does not necessarily exceed three miles in length, is "practically indispensable to the successful operation" of any existing or proposed manufacturing establishment, and is not "unusually unsafe" or "unreasonably harmful." The railroad may require the person, firm, or corporation primarily to be served thereby to pay the legitimate cost of acquiring, by condemnation or purchase, the necessary right-of-way for the spur and of its construction, as determined by the Railroad Commission. By § 1797-12n, the Commission is authorized to receive complaints, in case of the failure or refusal of railroads to perform the prescribed duty, and to make appropriate orders.*fn1 Acting under these sections, the
Commission directed the Railway Company to extend the spur as desired by the Eden Company and thereupon this proceeding was brought to condemn the land for the right-of-way.
The assignments of error come to the single point, -- as to the character of the use. The State through its highest court declares the use to be a public one, and we should accept its judgment unless it is clearly without ground.
of way for such branches, spur tracks," etc. The Supreme Court of the State sustained the validity of this provision in Chicago & Northwestern Rwy. v. Morehouse, 112 Wisconsin, 1, holding (p. 11) that "the fact that a spur track may run to a single industry does not militate against the devotion of the property thereto being a public use thereof, so long as the purpose of maintaining the track is to serve all persons who may desire it, and all can demand, as a right, to be served, without discrimination."
In Union Lime Company v. Railroad Commission, 144 Wisconsin, 523, the court had under review an earlier order of the Commission requiring the railroad to build the spur extension now in question and, while that order was set aside because a proper hearing had not been afforded, it was held that the spur would not be a private track, but would be devoted to a public use. In the view that the tracks contemplated would be of this character, the court sustained the statutes (§§ 1797-11m and 1797-12n), under which the Commission was proceeding, against the same objections that are now raised. The court said (id. pp. 533-534): "Such track when built becomes a portion of the trackage of the railroad. The fact that its initial cost is borne by the party primarily to be served, with provisions for subsequent equitable division of such cost, does not make it a private track nor change the nature of its use. Over it the products of the industry find their way into the markets of the world, and every consumer is directly interested in the lessened cost of such products resulting from the building and operation thereof. That these products are supplied by a single owner, or by a limited number of owners, affects the extent ...