The foregoing statement shows that upon the receipt of the notice given by the commissioners, Mr. Hubbell, in good faith, began to prepare the tracks and other things necessary for the construction of the new station, and that from and after the month of March, and up to and including the month of October, 1897, he had made a total expenditure of $13,539.33. Notwithstanding this showing, the commissioners were in constant communication with Mr. Hubbell relative to the work being done respecting the construction of the new station, and on the 4th day of November, 1897, Mr. Hubbell, by a letter addressed to the board, stated, among other things, as follows:

We

“Our plan of the new station contemplates something for which we have been striving for many years, and will be an ornament to the city, a convenience to the public, and a credit to the railroad company constructing the same. have entered into a contract with the companies using our terminals to build and complete a new passenger station on or before July 2, 1898. You will, therefore, see there is no disposition on our part to delay the new improvement, and in fact it will be necessary for us to put forth every possible effort to complete the building within the contract time, but this we propose to do."

There is much additional correspondence on file in the office of the board relative to this station, but it is deemed unnecessary to extend the same herein, as the foregoing, in a general way, will show the action of the board in this matter, and while it was apparent to the board that Mr. Hubbell had many things to contend with in completing the arrangements for the final construction and occupation of the station, yet it believed that it was the duty of the board to insist that an honest effort should be made to better the conditions then existing regarding station facilities by the different lines of railway using the depot, for it is certain the building was a standing menace both to life and property, and was in almost every way inadequate for the larger business that was being daily transacted at this station. Those who had occasion to use this station had a right to insist that they were entitled to better treatment, and should have long before this received accommodations more in keeping with the surroundings and the large business carried on at this point.

However, there is now erected a large, commodious, convenient and suitable station by Mr. Hubbell, 283 feet in length, forty-eight feet in width, and two stories high, constructed of Roman brick of grayish color, terra cotta and iron, with metallic lathing. It has one large general waiting room, seventy-six feet by forty-two feet and thirty feet high; ladies' anteroom and large parlor, toilets, etc., connecting with each. Smoking room, barber shop, gentlemen's toilets and wash rooms, news stand and ticket offices. It also has dining room and kitchen, baggage and express rooms.

The depot is used at present as passenger station

for incoming and outgoing passenger trains of the Des Moines Northern & Western railroad, the Wabash railroad and the Chicago Great Western railway companies. The offices on the second floor are used by the officials of the different companies named above, and the officials of the Des Moines Union Railway company.

The complainant in this case, Mr. Albert S. Phipps, in a letter of date July 15, 1897, stated in substance that he was the owner of the east half of the northwest quarter of section 8, township 68, range 40, one mile east of Farragut, Fremont county, Iowa; that the Red Oak and Nebraska City branch of the Chicago, Burlington & Quincy Railroad company runs in a southwesterly direction through the northwest corner of his farm, cutting off a small strip of land from the main portion of his farm, upon which are located his buildings; that a public road is located adjoining his farm on the north, which he wishes to reach from his buildings situated south of the railway by way of an open crossing across the right of way and track of said railway.

The matter was taken up by the board with the respondent company, and Mr. C. M. Levey, superintendent Iowa lines, answered substantially that Mr. Phipps was already provided with an ordinary farm crossing with gates; that he also had easy access to the public highway without crossing the right of way of the railway company; that the open crossing desired would only be eighty feet west of his present crossing and 600 feet west of the public crossing; that the railroad company did not regard the circumstances to be such that an open crossing was necessary for complainant; that the same would be very objectionable on account of its close proximity to the open highway crossing, inasmuch as it would unnecessarily expose the train and the public to the increased peril from obstructions and cattle upon the tracks and in the cattle guards.

A member of the commission, after due notice to all parties, visited the locality in question on July 1, 1898, where he met the complainant, Mr. Phipps, and Mr. W. L. Breckenridge, engineer, who represented the railroad company.

The facts as found to exist were substantially as stated by the complainant in his petition, and by the railroad company in its answer. It was found that Mr. Phipps' dwelling house and outbuildings are located to the west of the center of his farm; that his present egress to the public highway is along the west edge of his cornfield, north to the right of way of the railroad company, thence easterly until the right of way fence strikes the public road adjoining the north line

of Mr. Phipps' farm, which point is about 33 rods west from the east line of said farm; that the parcel of land belonging to Mr. Phipps on the north side of the railway is quite small, probably one to two acres, and an ordinary farm crossing at grade, with planks and gates, has been provided to connect the same with that portion of the farm lying on the south side of the railway. It was stated by Mr. Phipps, however, that this farm crossing is located near a slough that runs through his farm in a northerly direction, and that during wet weather it was nearly or quite impassable. The complainant desires the open crossing at a point on the line of railway directly north of his dwelling house, thus making an open egress to the public highway heretofore described.

The commissioners have given this matter careful consideration, and without determining the question of the right of land owners, under proper conditions, to insist on open farm crossings, have reached the conclusion that from all the conditions and circumstances surrounding this case, they would not be justified in making any order herein. Mr. Phipps already has comparatively easy access to the public highway on his own land, and without crossing the right of way of the railway company; it is the same highway he would reach were an open farm crossing provided as petitioned for.

It may be suggested that if the railroad company would slightly move its wing fences at the public crossing, it would make an easier turn for Mr. Phipps at the point where he now enters the highway from his own land.

On the 4th of November, 1897, Mr. Frank Corey, for the Corey Coal company, filed before the commission a complaint, the substance of which was that the Crooked Creek Railroad and Coal company refused to transfer Chicago & NorthWestern cars from the Mason City & Fort Dodge railroad to the coal mines operated by the complainants and situated on the line of the Crooked Creek Railroad and Coal company, and that complainants did not receive their proportion or fair share of the cars used by said railroad and coal company, and that they were being discriminated against by said railroad and coal company, to their great damage and injury; that subsequently Mr. Corey made an additional complaint against the same railroad and coal company, alleging that it refused to deliver coal in carload lots to the Mason City & Fort Dodge Railroad company, and when delivery of coal in carload lots is made, that the railroad and coal company exacts a charge of $5 per car therefor, and that in compelling complainants to pay such charge they were unable to compete with other coal dealers at points

situated on the Mason City & Fort Dodge and the Chicago & North-Western railways, where said coal was being shipped by complainants; and stating that on account of the unreasonable demands of the railroad and coal company and the switching charge aforesaid, the product of complainants' coal mine is being discriminated against, and he asks the railroad commissioners to investigate the same and make such order therein as will compel the railroad and coal company to furnish complainants their fair share or proportion of cars used upon said line of railway, and that it be obliged and compelled to ship their coal upon the same terms and conditions that it performs like services for other patrons of said railroad and coal company, and that the said railroad and coal company be ordered to cease all discrimination against said complainants.

To these several complaints, and the allegations thereof, the Crooked Creek Railroad and Coal company answered, denying that it had failed to furnish its fair proportion of cars to the complainants, and averring that the charge for the switching of cars from complainants' mines to the Mason City & Ft. Dodge railroad was reasonable, and denying that it had in any way discriminated against the complainants or the business in which they were engaged.

On the 30th day of December, 1897, at Fort Dodge, the commission held a hearing, at which time all of the parties were present and an investigation there had in regard to the shortage of cars, and whether or not complainants had received their fair proportion thereof, and subsequently thereto at Webster City on the 10th day of March, 1898, another hearing was had before the commissioners, at which time all of the parties interested therein were present, in regard to the question of the right of the railroad and coal company to charge complainants $5 per car, or any other sum, for the switching and handling of cars from complainants' mines to the Mason City & Ft. Dodge railroad.

The Crooked Creek Railroad and Coal company is a corporation operating about twenty-three miles of railway, the principal line thereof being between Webster City and Lehigh, a distance of about seventeen miles; that at Webster City it has rail connections with the Illinois Central and the Chicago & NorthWestern railways, and at Lehigh with the Mason City & Ft. Dodge railroad; that it also is engaged in the operation of a coal mine situated at or near Lehigh, and adjoining the coal mines of complainants; that side or switching tracks are constructed and maintained to each of said coal mines, owned by the railroad and coal company and the complainants, and that the same are used by the railroad and coal company in the handling of the product of said mines; that said side tracks are not used by any other railway company except the Crooked Creek Railroad and Coal company; that said railroad and coal company owns about twenty-two freight cars, and that coal, wood and grain constitute the principal part of the freight handled upon said line of railway; that most of the coal handled and hauled over this line of railway is in cars of other railway companies; that the coal mined from the mines operated by complainants, and the one operated by the railroad and coal company, is sold in many instances at competitive points, and, therefore, comes directly in competition with each other; that the railway line of this railroad and coal company is constructed and operated along and over heavy grades, and that there are numerous bridges along the line of said railway; that on account of the condition of the roadbed, grades and bridges thereof, the operating expenses are much greater than those of an ordinary railway company.

From the evidence submitted by the railway company, and from the knowledge that the commissioners have in regard thereto, we are inclined to believe that we would not be justified in making any order requiring said railroad and coal company to procure or purchase additional cars or operating equipment. We are unable to say, from the showing made by the respective parties, that the complainants herein have been discriminated against, so far as it is claimed that the railroad and coal company has failed to furnish them their proportion of the cars used upon this line of railway. We believe, however, that all reasonable orders for cars, under the circumstances of this case, given by the complainants, should be fairly and impartially observed and complied with by the railroad ard coal company. Where there is a shortage of cars, or any other obstacle in the way of extending to the complainants ample opportunity to dispose of the product of their coal mines, it would, in our opinion, naturally create in their minds a suspicion, at least, that such inability on the part of the railroad and coal company to furnish the necessary cars, or any other acts of omission or commission on the part of the railway company, would be an attempt to and be treated by complainants as discrimination against them and the product of their mines. We believe that much of the trouble that has arisen between this railroad and coal company, and the complainants herein, has been caused by and on account of the respondent company being a competitor of complainants in the coal busiThis controversy has been a source of annoyance and trouble between these parties for a number of years, it having been before the board of railroad commissioners several times during that period, and we are not sure that any decision that we may be able to reach in this matter will be satisfactory to both or either of the parties thereto.

ness.

After the first hearing it appears, from the testimony taken at the subsequent hearing, that the railroad company came to the conclusion that for all cars loaded at complainants' mines and delivered to the Mason City & Fort Dodge Railroad company, a charge of $5 per car should be made therefor, which was designated by said company as a switching charge. It was disclosed upon this hearing that if this charge of $5 per car was enforced against the product of complainants' mines, that they would be unable to compete with other coal dealers living along the lines of the Mason City & Ft. Dodge and Chicago & North-Western com. panies, to which points complainants were then shipping coal. It was conceded on the part of the railroad and coal company at such hearing that no other patron of the road or shipper thereon, either of coal or any other product or class of merchandise, was required to pay a switching charge upon or to the Crooked Creek Railroad and Coal company. The question of the reasonableness of this charge so far as it relates to the actual value of the services thus performed, was urged upon the part of the railroad and coal company as being reasonable on account of the distance that said cars were handled and the character of the grade over which such cars were operated.

We are not prepared to say at this time whether the switching charge of $5 per car, under the circumstances, is a reasonable one or not, for the reason that the conclusion which we have reached, it does not become necessary at this time to pass upon this question. The evidence and statements of the parties before the commission show that many carloads of merchandise are handled by the Crooked Creek Railroad and Coal company and switched from its line to that of other lines with which it has connecting tracks and that no charge is made therefor.