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barn, to a location in the village of Wells, and placed the same partly on the right of way of the company and partly on land adjacent thereto, belonging to the estate of Clark W. Thompson, deceased.
Second-That upon the demand of the company petitioner caused said building to be moved back from its first location with a view of getting the same off the right of way.
Third—That said building is still partly situated on the right of way of the respondent company. .
Fourth-That the building mentioned in the complaint as a warehouse for the purpose of buying and shipping grain therefrom." being also the building referred to in the first, second and third findings of fact, is a part only of the building moved; such building having been divided into two equal parts, one of which only is mentioned in the petition as being intended for a "grain warehouse.” The findings of fact, therefore, are confined to the building in question,
Fifth—That the building in question was not originally intended for, nor was it constructed as a grain warehouse ; that it is not sided or double boarded ; that it is not placed on a firm or permanent foundation, but is set upon stones and blocks of wood which rest upon the surface of the ground ; that upon the inside of the building there has been placed, to a height of three or four feet around the same, a tight board ceiling, for the purpose of holding grain ; that the balance of the building is not ceiled up, and is in such condition as not to shelter the contents from drifting snow or driving rain. That said building was considerably wracked, out of plumb, and not of the kind usually provided for the storage or shipment of grain. That as it now stands it would be three feet or more below the grade of the spur track, if one should be built to accommodate it:
Sixth-That said building was not located upon the land of the petitioner, nor had he any written lease of the same for a term of years, or otherwise. The evidence was that he had verbal permission from the agent of the Thompson estate to place said building upon said land.
Seventh-That the cost to the respondent company of putting in such side-track would be something over $100.
Eighth-That in the month of October, 1890, said building was rented to the Farmers' Warehouse Company, of Wells, by the petitioner, for how long a term did not appear. Ninth-That at the time of the hearing, the Farmers' Ware
house Company had in the building, ready for shipment, about 2,000 bushels of wheat.
Tenth-That the location of this building by the petitioner, partially upon the right of way of the company, and partly upon land belonging to another, for which he has only a verbal lease, and the character of the building itself, in respect to foundation, superstructure and general adaptation to the business of a grain warehouse, is not such as to justify the commission in making an order directing the respondent company to build a side track thereto at its own cost and expense.
Eleventh-That the business which it is alleged is to be carried on in this so-called grain warehouse is of a public nature; that the public as well as the common carrier have the right to demand that a structure for the purpose of doing business as a warehouseman, before, under the law, the commission would be justified in ordering a common carrier to construct a side track thereto, at its own cost and expense, shall be such as would fit it to be reasonably adapted for carrying on the business for which it was intended and give some assurance of being permanently used for that purpose.
CONCLUSIONS OF THE COMMISSION. The building in question is not such a building. In the par ticulars herein named it falls far below the common and ordi. nary standard for a structure designed for such a purpose, and in the opinion of the commission the courts would not enforce an order requiring the respondent company to build the side track as demanded by the petitioner at its own cost.
The extent to which the common carrier could be compelled to go under thelaw (subdivision (c), Sec. 3, Chap. 10, General Laws 1887) would be to permit the connection to be made and maintained in a reasonable manner with the side track of the respondent company, but at the cost and charge of the petitioner.
The conclusion in this case is intended only to apply to the situation presented by the record, as it is not a case in which a rule of general application can or ought to be laid down.
The case is therefore dismissed without an order as prayed for in the petition. By order of the commission,
A. K. TEISBERG,
The undersigned respectfully presents for your consideration and official action the following facts :
That about the last of July or 1st of August of this year he applied to Mr. W. Irwin, Supt. of S. M. Div. of C. M. & St. P. Ry. Co., in person, requesting a side-track to a certain lot lying adjacent to the company's right of way (not main line but right of way of bridge department track) in the village of Wells. Irwin made full memoranda and agreed to advise your petitioner that he might take action toward the placing of a warehouse on said lot. After waiting two or three weeks and hearing nothing from Irwin, your petitioner wrote Mr. H. R. Williams, Asst. Gen. Supt. of said company at Minneapolis, making the same request. The letter received in reply from Mr. Williams, dated Aug. 24, 1890, is as follows: "Replying to your favor of the 22nd inst. The matter mentioned has been referred to the General Manager by whom such matters have to be decided. We have all the work we can attend to this fall, and I hardly think it will be possible to make the change in tracks which you desire. Besides with the number of grain houses now at Wells I hardly see any demand for any more. • I will, however, advise you as soon as the General Manager advises me. (Signed) H. R. Williams, Asst. Genl. Supt." The warehouse which your petitioner desired to place on this lot was already erected but was to be moved as soon as this question was settled. Receiving no reply further from any source and the season being fast passing your petitioner wrote Mr. Irwin about the middle of September that he was about to move his warehouse and unless some objection was made he would place it partly on the company's land so as to be accesible to the track as laid. As soon as the warehouse was so placed Mr. Irwin ordered it removed and refused to confer with your petitioner as to where it might be allowed to stand or be removed to. Your petitioner, thereupon, on Sept. 22, caused it to be placed in position on his lot adjacent to the company's right of way, where it has since been and now is.
That thereupon he demanded a side track be built to accommodate the business of the warehouse for the purpose of buying and shipping grain therefrom, but the company have wholly failed, refused to build it. About the first of the month there being about three car loads of grain in the warehouse for shipment, your petitioner notified Irwin to that effect and asked about a side-track and the depot agent received from him a telegram as follows: “ Please say to Mr. Myers that we will not build any side-track to his building until we can see the building and judge what it will accommodate in the way of grain. We will not run the side track to the alleged building he has there now and do not think we will build siding of any kind before next spring owing to the lateness of the season. Mr. Myers has had several months to decide on what he was going to do, as he did not put up the building as proposed to, can do nothing more about it at present. (Signed) W. Irwin.”
The warehouse is — by - and as substantial and complete as the ordinary warehouse and as to any proposed building it was distinctly understood that this building was the one to be placed on said lot and used by your petitioner.
The striking manner in which the letter and spirit of the law has been violated, the insolence and want of ordinary courtesy which has characterized every act of every official from Williams to those through whom local communications have been made has impressed upon your petitioner the fact that he was discriminated against and intentionally so.
Nothing can be said against the location, as other grain houses are all around it and far enough away so that it clears the requisite distance, and as to character of the building, that is a matter of easy investigation by you and is no concern of the railway company. Your petitioner requests that the company be prosecuted, and makes the suggestion that the county attorney of this county is understood to be in the employ and rides upon the pass of the company, and that the prosecution might better be conducted by assistant counsel. Your petitioner further states that the building of a
track is now a subordinate consideration, although of vital necessity to the use of said building, but that the matter being one of damage he will undertake to recover in a private way, but that this kind of treatment calls for a public action and application of the law, especially at this point where it is but a repetition of the treatment received by every person attempting to start a grain warehouse here manifestly in the interest of what are styled the “Line Men"-Messrs. Hodges & Hyde and Cargill Bros.
Your petitioner offers to furnish all necessary proofs touching the matter herein or to render such further information as may be desired.
W. F. MYERS. Dated Nov. 11, 1890, Wells, Minn,
SUPPLEMENTAL. Your petitioner asks that an order be made requiring said company to build a side track to said warehouse.
W. F. MYERS. STATE OF MINNESOTA, Le County of Faribault, 5
W. F. Myers, being duly sworn, says that he is the complainant in this proceeding, and that the matters set forth in the foregoing petition and complaint are true as he verily believes.
W. F. MYERS. Subscribed and sworn to before me this 15th day of Nov., 1890.
C. N. ANDREWS,
Before the Honorable, the Railroad and Warehouse Commission of the State of Minnesota.
W. F. MYERS, PETITIONER,
vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO., RESPONDENT.
For answer to the complaint and petition of the above named petitioner, filed on or about November 18, 1890, asking of said commission an order requiring the respondent to build a side track to a certain alleged warebouse at the village of Wells, Minnesota, the said respondent
First--Protests and insists, that no statute of Minnesota requires the respondent, or authorizes the said commission to require the respondent to build such side track.
Second-And further protests and insists that subdivision (c) of section 3 of chapter 10 of the laws of 1887, gives color for or of such requirement or authority only by indirect, remote and unnecessary implication.
Third--And further protests and insists, that said provision of said statute, or any statute purporting or construable as requiring or authorizing the requirement of such building of track, otherwise than at the sole expense of the petitioner, as well in and for the construction, as in and for the naintenance thereof, is in excess of legislative authority, unconstitutional and void, as a taking of the property of the respondent, whether consisting of materials or of money, without compensation, and this not for any public use, but solely and wholly for the private use and gain of the petitioner in and about his personal business, and this without any assurance or security that any increase of respondent's earnings to result therefrom will ever yield to the respondent any profit or advantage whatever.
Fourth-For further answer, with special reference to this particular petition and to the facts concerning the same, the respondent denies that any allegation of said petition is, in whole or in part, or in any respect, degree or particular, true, otherwise or further than as hereafter specifically admitted or set forth.
The respondent admits, that about the first day of August, 1890, the said petitioner applied to said Superintendent Irwin, requesting a side track to a certain lot or tract of land in said Wells, alleged to be the property of the petitioner immediately adjacent to the right of way of the respondent's bridge department tracks; but the respondent avers that the said lot was and is between the right of way last mentioned and the right of way of respondent's main track; that the right of way last mentioned then contained and now contains divers other tracks; that it was then and there represented by the petitioner that he had elsewhere situated a large hay barn, which he proposed to move to said lot or tract, to divide into three parts and to convert into three considerable grain houses, suitably finished for such location thereof and there be used in and for the receipt and shipment of grain, and not otherwise.
That for such purposes, the respondent, after consideration, was willing and at all times since, until notice of the filling of the said petition, continued to be willing, and consented to build such side track, without expense to the petitioner, and to operate the same in and for the grain business so proposed to be transacted in such three grain houses, although there then were and still are at Wells aforesaid, without such proposed grain houses of the petitioner, grain houses amply sufficient for the transaction of the grain business of said village, and of the grain producing country tributary thereto.
That the petitioner meanwhile cut said hay barn into two parts and moved and for a time left one part thereof standing almost wholly upon land of the respondent, and but slightly in contact with the lot or tract of the petitioner, but some time afterwards moved and placed the same, as well as the other section of said hay barn, so as respectively to be mostly upon said lot or tract of the petitioner, but still partly upon respondent's land adjacent thereto, and has ever since wholly refused to remove the same, or either thereof from such land of the respondent.
That after removing and placing, as last aforesaid, such two parts of said hay barn, the petitioner converted one part thereof into a rough wheat house, so-called, and the other part into a rough hay barn, and had ever since declared his purpose to use and continue to use the hay barn last mentioned in and for the receipt, storage and shipment of hay upon his said lot or tract; and he has ever since for such purpose and contrary to his original application in this, among other particulars, demanded, and by his said petition now demands, the construction of such side track in aid of his transaction of a hay business, and for the transaction of a grain business in and by means of but one grain house, consisting of but one half of the large hay barn first aforesaid.
The respondent further shows that the large hay barn first aforesaid, before its said removal, was an old, roughly finished, dilapidated and long disused wooden building, and that since such division and removal the exteriors of the two parts thereof have not been materially improved, and are such as more readily to catch and take fire from without than if smoothly finished, as grain warehouses and elevators are usually finished.
That the handling of quantities of hay necessarily scatters large amounts of loose hay on the ground in the vicinity of the place of storage; that in the vicinity of petitioner's lot or tract, and all around and within unsafe fire distances from said lot or tract, and from said now proposed hay barn thereon, are and long have been many buildings and business establishments, mostly of wood, and actively used, of many persons located upon or adjacent to respondent's rights of way, as well as the buildings, machinery, lumber yard, usually containing large quantities of lumber and timber, of respondent's bridge department; all of which will be necessarily and unavoidably exposed to greatly increased danger of fire, whether from locomotive engines or from other sources, by the conduct of a hay business in such location; that the cost of insuring all such sur