Butte, Anaconda & Pacific Railway Co. v. Montana Union Railway Co.

41 P. 232, 16 Mont. 504, 1895 Mont. LEXIS 165

• Court: Montana Supreme Court
• Decided: July 29, 1895
• Status: Published

Opinion

Hunt, J.

By this appeal we are called upon to decide questions of importance, not alone to the community at large, but especially so to railroad corporations, possessed of such powers as may be granted to them under the constitution and laws of the state.

The topography of Montana, as characterized by its name, renders it of unusual significance that the laws of eminent domain be correctly expounded at this comparatively early period of the development of the state.

The strict limits of all delegated authority to take the property of another must be cautiously and accurately guarded, lest private rights or those conferred be unnecessarily invaded. On the other hand, if the power to take has been delegated, that power must be precisely defined and upheld by the courts, as one vitally affecting the material interests of the state.

The ways for railroads to reach remote mining camps, sometimes lying within small areas, upon precipitous mountain sides, at unusual altitudes, and in steep and rocky sections, are often very few, and only feasible at all by skillful engineering and vast outlays of money. Where, therefore, two or more railroads, in their mountainous routes, may seek the same objective mineral districts in view of their probably necessary juxtaposition, their rights must be carefully established with relation to the law as applied to the physical, as well as other and more general, conditions controlling them in their obligations towards one another and to the public as well.

Two main propositions are presented for review: First. Are plaintiff’s road and branches public uses ? Second. Can the plaintiff company construct its road within the defendants’ right of way, and is plaintiff’s use of the ground a more necessary use than that of the defendant companies, and is the ground sought to be taken necessary to plaintiff’s use, and not necessary to defendants’ use ?

It is well established that if, in point of law, a use is public, the fact that not very many persons will enjoy the use is not material. (Talbot v. Hudson, 16 Gray 417.) The character of a way, whether it is public or private, is determined by the extent of the right to use it, and not by the extent to‘which that right is exercised. If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small. (Phillips v. Watson, 63 Iowa 28; Lewis on Eminent Domain, p. 241; Shaver v. Starrett, 4 Ohio St. 496; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461; Randolph on Eminent Domain, § 56.)

The circumstance that the plaintiff road was built by a private corporation, and that its branches run within convenient contiguity of private mines or ore houses, does not materially affect the road and give a private character to its use or to the use of its spurs. All termini of tracks and switches are more or less beneficial to private parties, but the public character of the use oí the tracks is never affected by this. ‘ ‘It may be in such cases that it is expected, or even that it is intended, that Such tracks will be used almost entirely by the manufacturer; yet, if there is no exclusion of an equal right of use by others, and the singleness of use is simply the result of location and convenience of access, it cannot affect the question. ” (Chicago Dock Co. v. Garrity, 115 Ill. 155; Chicago B. & N. R. Co. v. Porter, 43 Minn. 527; St. Louis & M. S. Ry. Co. v. Petty, 57 Ark. 359; 20 L. R. A. 434.)

The force of these observations is peculiarly apparent in a new mining state. Frequently, railroads are extended by spurs or lateral connections of main lines, or by independent lines, into mining camps where but a single mine is developed and capable of shipping freight. Such roads or spurs are not infrequently built by the private enterprise of those interested in the one mine to be benefited, and when constructed it is intended that the tracks will be used almost wholly by the mining company which constructed the spur. The supposed barrenness of the country contiguous to the road, or the undeveloped condition of the mountain in which the mine is lying, or, perhaps, the hitherto unrewarded search of the prospector, has encouraged the belief that, apart from the single mine owned by those who have built the railroad, there are no other paying properties upon which a railroad might rely for ores or supplies to transport. “ Such expected limited uses are but the results of the location of the mine and its inaccessibility. They do not in any way, however, exclude an equal right of use by others, perchance, desiring to ship freight or secure transportation over the road. To better illustrate our meaning, we have only to modify the instance just referred to of the railroad lateral built to a single mine. Suppose that a pioneer prospector has located and represented a claim contiguous to such railroad, but by reason of the impracticability or expense of constructing a wagon road, he has been obliged to simply keep what he believed was a good mine, hoping that in the future railroad facilities would afford him the opportunity to haul his ore to market. Suddenly, by the enterprise of others, and without any expectation on their part of aiding any project other than their own, a railroad is built, and he may attain the fruition of his hopes if he can use the railroad to ship his ore. Could it be contended with any merit that the railroad company, incorporated under the railroad laws of the state, can discriminate against him by saying, “We are a private enterprise, for private use, and are not generally open to the public, and for this reason refuse to haul your ore, or to bring your machinery and supplies into these hills, and you cannot compel us to act otherwise?” Or, to carry the illustration further, suppose many mines are located close to the new line of road, and a mining district opened of incalculable interest to the state, a town springs up, with its diversified trade relations, and that thus the railroad originally constructed and intended to subserve the single mine, with little or no thought of any greater use, may become a measure of great utility to many people; must this development stop, or be dependent upon the caprices or will or discriminatory orders of the incorporators or owners, based upon a claim that the road was constructed for private purposes, and cannot be made to answer the demands of the public ?

We say, after full deliberation, that the express command of section 5 of article XY of the constitution, that “all railroads shall be public highways, and all railroads, transportation and express companies, shall be common carriers, and subject to legislative control,” etc., supplemented by the statute (section 680, p. 809, div. 5, Comp. St. 1887) authorizing the construction .of side tracks, branches, etc., has made them instruments of public service as well as private profit, and is sufficiently comprehensive to include, not only the railroad used to illustrate our views, but, by analogy, the particular railroads of appellants and respondents m their main lines, lateral branches, and spurs, to particular mines in and about the numerous mining dumps, shafts, and ore houses described in this suit, and situate upon the hills adjacent to the- city of Butte. (Getz's Appeal, 3 Am. & Eng. R. Cas. 186.)

Furthermore, it is expressly provided by section 7, article XV, of the constitution, that ‘ ‘all individuals, associations and corporations shall have equal rights to have persons or property transported on and over any railroad, transportation or express route in this state. No discrimination in charges or facilities for transportation of freight or passengers * * * shall be made * * * between persons or places within this state. * * * No railroad or transportation company

* * * shall give any preference to any individual, association or corporation in furnishing cars or motive power, or for the transportation of money or other express matter. ’ ’ This provision, when considered with the previous one quoted, also demonstrates that the constitution, in its letter, its spirit, and its policy as well, classes all railroads, with their feeders, such as respondent and appellants operate, as public highways, subject to use by the public of right, amenable to the laws governing common carriers forever forbidding all obnoxious favoritism^ between any who desire to use such highways. (St. Louis & M. S. R. Co. v. Petty, 57 Ark. 359, 20 L. R. A. 334.) This stable written policy is doubtless the outgrowth of pernicious systems of discrimination and preference which railroad corporations may have indulged in throughout the land where their powers are unrestrained by constitutional or other restriction. It puts them all on a plane, and under the facts before us, respondent and appellants, as public highways, are alike the beneficiaries of its liberality, subject, nevertheless, to its restrictions and liabilities.

Chief Justice Hawley, for the supreme court of Nevada, vigorously discusses a ‘ ‘public use, ’ ’ as meant by the constitution of that state, and concludes that the necessities of the business of mining, milling, smelting, etc., are of direct interest to the people of Nevada, and that a statute of that state is constitutional which authorizes land to be condemned for the necessities of such business. (Dayton Mining Co. v. Seawell, 11 Nev. 394.) This decision was afterwards expressly affirmed in Overman S. M. Co. v. Corcoran, 15 Nev. 147, and again recently approved by its learned author, in the United States circuit court for Nevada, where the court upholds a statute authorizing the appropriation of land for a mining tunnel as a proper exercise of eminent domain, on the ground of “great benefit and advantage to the mining industry.” (Douglass v. Byrnes, 59 Fed. 31.)

The supreme court of Georgia held in Mining Co. v. Parker, 59 Ga. 419, that a section of an act of the legislature incorporating a gold placer mining company, and giving it power, under the constitution, to take the private property of the complainants for the use of their ditch for the purpose of extending the same to their own land, on payment of just compensation therefor, was constitutional. “Gold and silver,” say the court, £ £is the constitutional currency of the country, and to facilitate the production of gold from the mines in which it is imbedded, for the use of the public, is for the public good, though done through the medium of a corporation or individual enterprise. ’ ’

In a comparatively recent decision (Oury v. Goodwin, (Ariz.) 26 Pac. 376), the court sustained an act of the territorial legislature permitting the condemnation of appellant’s real estate for the purpose of an irrigating canal, basing their opinion upon the principle that a state may, in view of its natural advantages and resources and necessities, legislate in such a way, exercising the power of eminent domain, that these advantages and resources may receive the fullest development for the general welfare, the laws being general in their operation.

The Nevada and Georgia cases have been disapproved of by Lewis on Eminent Domain (§ 184), but the disapprobation is based upon the ground that a law which granted a right of condemnation for a purpose singly and essentially private in its nature could not possibly subserve any public use or be of any public benefit, and hence is an invalid attempt to take private property for private use, and not upon the soundness of the argument that the magnitude of the interest of a state may be considered, for which alone we cite them. The reasoning of these cases, however imperfect the application to particular facts may have been, is well sustained. (Randolph on Eminent Domain p. 50; Wood, B. B. p. 822; Mills on Eminent Domain § 20; Cooley Const. Lim. 533; Hibernia Railroad Co. v. De Camp, 47 N. J. Law, 518; 1 Rorer R. R. § 409; Comp. St. Mont. 1887, § 1495 at seq.)

The public interests are benefited by railroads, and the right of eminent domain may be exercised through the medium of corporate bodies. The public have an interest in the use of the railroad, and the owners may be prosecuted for the damages sustained, if they should refuse to transport an individual, or his property, without any reasonable excuse, upon being paid the usual rate of fare. (Beckman v. Railroad Co., 3 Paige 45; Lewis on Eminent Domain § 170; Dietrich v. Murdoch, 42 Mo. 279.)

Where the general public advantage is greatly promoted by the improvement of water power in the streams and waters of a country, private property taken for that purpose is taken for a public use, within the meaning of that term. (Hazen v. Essex Co., 12 Cush. 475.) Indeed, in New England we find the courts very emphatic upon the question. Chief Justice Perley, after speaking of the interests that New Hampshire had in the improvement of her natural water powers, wrote as follows: “No state of the Union is more interested than ours in the improvement of natural advantages for the application of water power to manufacturing purposes. Nature has denied to us the fertile soil and genial climate of other lands, but by way of compensation has endowed us with unrivaled opportunities of turning our streams of water to practical account. The present prosperity of the state is largely due to what has already been done towards developing these natural advantages; and there is no assignable limit to our resources in this respect, if extended and connected enterprises for the improvement of the water power in the state should be sucessfully prosecuted hereafter. In no part of the world have the public a. deeper interest in the success of all undertakings which promise-to assist in the development of these great natural advantages. Whether, therefore, we look to the interpretation which has-been given in other jurisdictions to the term public, use, in. reference to the right of taking private property for such a use, to the legislative practice under the provincial and state governments before and at the time when the constitution was adopted, to the language of the constitution itself, to the early and continued legislative practice under the constitution, to the decisions of the courts in this state, or to the character of our business and the natural productions and resources of the state, we are drawn to the conclusion that the legislature have power to authorize a private right that stands in the way of an enterprise set on foot for the improvement of the water power in a large stream like this river to be taken without the owner’s consent, if suitable provision is made for his compensation, and that the act of 1862 is constitutional and valid. ’ ’ (Manufacturing Co. v. Pernald, 47 N. H. 444; Olmstead v. Camp, 33 Conn. 532. See, also, Scudder v. Falls Co., 1 N. J. Eq. 695; Mills on Eminent Domain § 183.)

So vital to the development of the agricultural interests of the state is water for irrigation that, as a part of the bill of rights of the constitution, it is provided: “The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution or other beneficial use, and the right of way over the lands of others, for all ditches, drains, flumes, canals and aqueducts, necessarily used in connection therewith, as well as the sites for reservoirs, necessary for collecting, and storing the same, shall be held to be a public use. Private roads may be opened in a manner to be prescribed by law, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. (Const. Mont. art. Ill, § 15.)

The improvement of Boston harbor by reclamation of a large body of land for commercial purposes was held to be of great public advantage. (Moore v. Sanford, 151 Mass. 286.)

“The ever-varying condition of society is constantly presenting new objects of public importance and utility, and what shall be considered a public use or benefit may depend somewhat on the situation and wants of the community for the time being. ’ ’ But the underlying principle remains, that there must be a public use or benefit. “But what that shall consist of, or how extensive it shall be to authorize an appropriation of private property, is not easily reducible to general rule. ’ ’ (Scudder v. Falls Co., 1 N. J. Eq. 695; Talbot v. Hudson, 16 Gray 417; Buffalo & N. Y. R. Co. v. Brainard, 9 N. Y. 109.)

In thus ingrafting upon the law of this jurisdiction the doctrine that the magnitude of the interests involved may properly become a determining factor in sustaining the right of a railroad to construct lateral branches, tracks, and spurs to mines and mining works, as public uses, by virtue of the.law of eminent domain, we are always duly mindful, not only of the constitutional guaranty of the individual right of possessing and protecting property, but are equally impressed with the declaration that ‘ ‘the good of the whole’ ’ is the very foundation of the constitution. Indeed, it may be said that upon this latter axiom of all government by the people rests the principle itself. The force of the principle may vary in different communities. What cogently applies to Montana, with its mountains and quartz, would be an absurd process of reasoning to urge in Louisiana, where scarce an undulation marks the surface, or a mineral lies beneath it. Therefore, to correctly define what that force is in the case before us, it is eminently reasonable and appropriate that the conditions of the whole people to be affected should be considered. In this state, where, almost wholly through the facilities and advantages of railroads, the quartz' mines have been developed to such an extent that the mineral output is only exceeded by that of one or two older mining states, the publicity of the use of railroads into the camps is too obvious to require more extended comment. In the language of the eminent counsel who so lucidly presented respondent’s side of the case: “Again, in Montana, mining is the dominant industry. Throughout a large portion of the state, and in the county of Silver Bow especially, it is the all-important pursuit, upon which all other industries are dependent. In the mining, smelting, and reduction of ores the great mass of the population finds employment and support. The prosperity of the state is very largely due to the development of the mines. ’ ’

Having determined that the respondent’s railroad and laterals, branches and spurs are all public highways, within the legal bounds of public uses, it follows that the law of eminent domain was available to them, provided: “(1) The use to which the respondents have applied the ground taken is a use authorized by law. (2) That the taking was necessary to such use. (3) If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.” (Code of Civil Procedure, § 601.)

That a necessity exists which requires property to be taken is obvious. This follows as a conclusion of the determination that the purpose of the plaintiff is a public use. (Moore v. Sanford, 151 Mass. 286.) But, insist the appellants, although we grant a right of way is necessary, if it is held that the Butte, Anaconda & Pacific Eailway is a public use, nevertheless, at the very threshold of this branch of the case we deny the necessity of the particular land for the railroad uses for which respondent seeks to appropriate it.

The district court found that the ground included within the defendants’ right of way was necessary to the plaintiff for the proper construction and maintenance of its road, that such ground was not necessary for the use of defendants’ railway, and was not in actual use by them at the time of the order, and that the use for which the plaintiff sought to condemn the same was a more necessary public use than any use the defendants have or could put the same to.

Without more prolixity than we think is essential to make clear our opinion, we will state the concluded facts apparent to us. The country through which the contending railroads run is one of the mountains of the main Eocky Mountain range, and known as the ‘ ‘ Butte Hill, ’ ’ above the city of Butte. The railroads about the hill are really great broad-gauge spurs of their respective main lines. From these great spurs many short ones project, running to ore house or mining shafts. The principal object of both railroads, in their branches about the “Hill,” is to haul ores from and supplies to the several quartz mines indicated upon the map, to wit, the St. Lawrence, Anaconda, Wake Up Jim, Buffalo, Moscow and others. The Butte, Anaconda & Pacific (respondent) tracks for the most part lie north of the Montana Union tracks. The Montana Union rignt of way was twenty-five feet on either side of the center of its tracks. It had, however, graded along the hill only to an extent a little more than necessary for the actual space occupied by its roadbed. In many places the hill is so very steep, or so rocky, or both, that the rails must have laid very close to the bluffs just north of the tracks. There was no actual use of such bluffs or other ground adjacent to the Montana Union tracks, nor could it actually occupy the same without heavy excavation work on the upper side. Commencing at a point on the hill within the limits of the Nipper quartz mining claim, the Butte, Anaconda & Pacific, with its road, was graded and excavated on the upper side of appellants’ roadbed, and is within the right of way of the Montana Union for abo at a mile and a half. At places the south rails of the Butte, Anaconda & Pacific road are within ten feet of the northern rails of the Montana Union, but as a rule there is some seventeen to twenty-two feet between the centers, — that is, from the center of the Montana Union tracks to the center of the Butte, Anaconda & Pacific tracks. These distances, excluding the crossings, are sufficient to prevent any interference between the successful operation of the two roads. The strips of ground which the plaintiff would condemn and appropriate vary in width, the variance being evidently based upon what the plaintiff deems necessary for the operation of its road, considering the points to be reached, and the distance which would and must separate the two roads when constructed. Prior to the institution of this action, — that is, in 1893, — various lines and means of getting to the several ore houses marked upon the map were projected. All these ore houses are at the same level as to the grade of the two roads; several of them, however, being below the level of the Montana Union main track. By the abrupt rise in the hill and its rocky character, and because of the necessity of the Butte, Anaconda & Pacific crossing divers spurs of the Montana Union, it is necessary that the right of way of the Butte, Anaconda & Pacific be laid down to the same level as the Montana Union. This necessity could only be obviated by requiring the Butte, Anaconda & Pacific to either cross the spurs of the Montana Union at grade, or construct its load high enough to go overhead or low enough to pass beneath the spurs. To go under them would require the plaintiff to undertake an engineering task so far beyond what is deemed practicable or reasonable that it need not be considered at all. To build its line overhead would compel the Butte, Anaconda & Pacific to construct its road at more than twenty feet above the crossings, so that, when it passed the ore houses which the two roads go to, the plaintiff’s road would be useless, unless, after running beyond the ore houses, switch backs were constructed down the hill, by which they could reach the objective points. To follow this plan would require the plaintiff to run into the mountain at points beyond the ore houses, at enormous expense of construction, and right of way, probably; and the road, when thus constructed, would be very impracticable to successfully run or operate. If the Butte, Anaconda & Pacific constructed its line above the Montana Union, it follows that the cuts through which it would have to run would be very much heavier than its present line, and at their objective points it would still be necessary for the two roads to be within a few feet of one another. Another objection to running higher up the hill is that such a route would materially interfere with the operation of the mines on the mountain. In such case shaft houses would be cut through, dumping grounds intersected, and quartz-mining operations seriously interfered with. The route chosen was deemed by far the most feasible and practicable one. Other routes could have been selected, according to the engineers’ evidence, but any practicable one which might have been chosen would have crossed the main line of the defendants, as well as many of their spurs. The plaintiff, by going upon the right of way of the defendants, widened the cuts which defendants had already made in many places, but when .we consider that the hill had remained in its natural state until further excavated by the plaintiff, it is plain that no material damage was done to the defendants by the plaintiff by the mere act of excavating as it did. On the contrary, such excavations are a benefit from a mere standpoint of construction. Upon one part of the right of way, lying within the Belle of Butte addition to the city of Butte, the natural physical obstacles to selecting another route were not so great as higher up the hill; but, in order to conform with the grade necessarily chosen to reach the point higher up the hill, the most practicable route was that selected through the Belle of Butte addition, particularly in view of the fact that, had they kept off the right of way of the defendants, the plaintiff would have been compelled to pay for a number of dwelling houses and the lots which they were on, and other parts of their line would have been affected.

An experienced engineer, Mr. N. C. Ray, testified in behalf of the defendants that he had, at a time long prior to the institution of this suit, and at a time when there were not so many houses about the foot of the hill, and not so many mines developed and ore houses built on the mountain, made a survey for another railroad, with a view of finding a practicable route. His proposed line ran on the south or lower side of the present Montana Union track. It was proposed by this route to make most of the crossings of the Montana Union spurs grade crossings. It appeared also that the Ray route, if followed, would necessitate for a long distance a retaining wall to be put up to maintain the slope of the Montana Union roadbed, and to keep it from falling over on the proposed roadbed. It would require very heavy fills or trestle-work, and, withal, a scale of a map made when this projected route was first surveyed showed that there was not two hundred feet difference in the longitudinal conflict between the Ray route and the present Butte, Anaconda & Pacific route and the Montana Union right of way, as they appear on the maps. The total length of the present lines is about three miles, or a little less. From certain given points there was, between such proposed route and the actual route of the Butte, Anaconda & Pacific, a difference of three-fourths of a mile, the greater length being the Ray route. The Ray route necessitated five grade crossings of the main track of the Montana Union, all of which, it satisfactorily appears, were more undesirable than an equal number of crossings would be over spurs. Moreover, the Ray line, if run at the time this litigation first arose, would have encountered buildings, shaft houses and dwelling houses which were not in existence when the line was first proposed. It would have been vastly more expensive, by reason of the enhanced value of the right of way, and we think it only fair to say that, as the conditions existed at the time that the testimony was taken in this cause, his route was impracticable. Moreover, the Ray route was not projected with a view to serving all of the the various ore houses touching plaintiff’s and defendants’ roads; the only branch appearing on the Ray map being to the High Ore house, and a branch to the Anaconda and the Humboldt.

One of the objections interposed by the defendants to the occupancy of their right of way was the difficulty of throwing-out switches or side tracks to the north of the Montana Union, but the engineers swear that if they have distances to centers between tracks of twenty-two feet, there is room between the two tracks for another track, and if the Butte, Anaconda & Pacific elevation is so high that the Montana Union cannot get over by crossing at right angles, a spur can be run at any distance in order to attain the proper elevation.

Another objection vigorously urged was the difficulty of handling ties where the roads were very close together. But it appears that some of the greatest railroads in the country, notably the Pennsylvania system, have three tracks abreast, with centers of the two outside tracks twenty-two and one-half feet apart. Ties are successfully handled on such roads, and we see no reason why they should not be upon the roads of the contending parties at bar. Besides, the hill, as it stood, was certainly a much greater obstacle to necessary conveniences in this respect than it is as excavated to a level with appellants’ roadbed.

It was also urged that the right of way taken by the defendants was necessary in case of future double tracks or sidings, but as these needs are mere future possibilities, not based upon reasonably apparent traffic needs, we do not think the showing is strong enough to merit very serious consideration.

A great deal of testimony was also taken upon the inconvenience to the defendants in the operation of their trains at various crossings where the construction of plaintiff’s road prevented the defendants from handling as many cars at one time as they icould handle if the plaintiff’s road were not in their way. Eliminating the consideration of the Gagnon, Buffalo, and Haggin spur crossings, which are referred to hereafter, we are constrained to hold that, as the law expressly gives the right of crossing and intersecting (Const, art XY, § 5), the interference is only such as is essential to any method of operation of two railroads where they cross and intersect one another on the side of a mountain, where their respective ways are necessarily very limited, and where both may have lawful rights of way to their respective but identical objective points.

It is well to bear in mind, in the application of the principles underlying the law of eminent domain, that the state has an inherent political right, pertaining to sovereignty and founded on what has been expressed to be a “common necessity and interest, ’ ’ to appropriate the property of individuals to great necessities of the whole community where suitable provision is made for compensation. (Raleigh v. Davis, 2 Dev. & B. 451; Lewis on Eminent Domain § 3.) This right, says the constitution of Montana (§ 9 art. XY), “shall never be abridged nor so construed as to prevent the legislative assembly from taking the property and franchises of incorporated companies and subjecting them to public uses, the same as property of individuals. ’ ’ The public welfare is therefore the particular base upon which must be laid the correct application of the doctrine itself. The right of eminent domain may be of the greatest value to the respondent, or to any other corporation which may exercise its privileges, but that is an incident which must be subordinated by the courts to the question of public use, and to the consideration of the benefits to accrue to the public by the construction of the contemplated project. There is, however, a rule of construction, sustained by the great weight of well-considered authority, to the effect that this power to take the property of private citizens or other corporations for public use must be exercised and can be exercised only so far as the authority extends, either in terms expressed by the law itself, or by implication clear and satisfactory. (In re City of Buffalo, 68 N. Y. 167; Sutherland on Statutory Construction § 388; Mills on Eminent Domain §16.)

In our opinion, the testimony in this case shows that the particular location of respondent’s railroad is by far the most practicable which could have been found, and, considering the fact that any other route would have impinged upon the appellant’s right of way very nearly as much as the present route does, and that such other route would have affected many mining operations, would have been enormously expensive, and much less convenient or somewhat less safe, and that it is manifestly to the best interests of the public generally that railroads be constructed throughout the mountains over such routes as will enable the public to receive the best and most expeditious service which can be attained, we think that the taking of the portions of the right of way of appellants’ road was necessary to the use, which was public, of the respondent’s railroad.

Now, however, having advanced to this point of'the case, we are met with this argument by the appellants’ counsel, namely, that this right of way was already appropriated, and that there was no delegation of power to any corporation under the eminent domain laws of the state to take property already appropriated to a public use, unless, as provided by the last clause-of the third subdivision of section 601, Code of Civil Procedure 1887, “the public use to which it is to be applied is a more necessary public use. ” We have already concluded that this land was necessary to respondent’s use, and the question therefore is, is respondent precluded from condemning these necessary lands because they have already been condemned for public use by the appellants ? If the question were limited merely to this single inquiry (unless some other statute authorized a taking), doubtless, under rules of construction, we should hold that the respondent could not invade the right of way of the appellants. But our legislature has imposed upon the court the additional responsibility of judicially determining whether the use to which the appellants did or would put the particular lands is a more necessary one to the- public than that to which they have already been appropriated by the Montana Union Railway. , We therefore find the whole proposition resolves itself under the facts to this: A part of the right of way of the Montana Union Railway Company has never been used by it for railroad purposes for the several years during which the road has been constructed and in operation, and is not reasonably requisite for future uses. The Butte, Anaconda & Pacific Railway Company, in the location of. its only really practicable route, desires to take parts of such unused portions of the Montana Union right of way; such portions being necessary for their actual use, and unnecessary for the actual use of the appellants.

We have used the word “necessary” advisedly throughout this opinion, although when we say that the route chosen by the Butte, Anaconda & Pacific requires the taking of the lands in question as necessary for public use, we do not mean that there is an absolute necessity of the particular location they seek. But, under the statute, such an absolute necessity is not a prerequisite to the exercise of the law of eminent domain.

We are aware of the decision of the supreme court of Pennsylvania (Sharon Railway Co’s Appeal, 122 Pa. St. at page 545), that land once appropriated by a railroad company to public use under the right of eminent domain cannot after-wards be appropriated by another company to the same use, except in case of 11 absolute necessity. ’ ’ There one oad sought to take part of the yard of another. The facts warranted a finding by the master that the lands sought to be taken were convenient and necessary to enable the plaintiff company to economically and expeditiously carry on its present and prospective business, and it was upon such a finding that the court held as it did. If the learned judges meant by an absolute necessity to exclude entirely the element of reasonableness in the measure of their words, we are constrained to take a different view of the law in interpreting our statute, and in so doing we find ourselves in thorough accord with three of the justices of the same court in their dissenting opinion, reported in Appeal of Pittsburgh J. R. Co., 122 Pa. St. 511, and decided just two years before the absolute necessity rule was laid down in the case hereinbefore cited. The appeal in the Pittsburgh Junction Co. case in its facts was much closer to the case at bar than Sharon Railway Co.’s Appeal, supra. The Allegheny Valley Railroad Company claimed to own certain property in the city of Pittsburgh, extending from Forty-Third street to Forty-Seventh street, and from an unnamed street on the south to low-water mark on the Allegheny river on the north, all of which property it claimed to have in constant use in connection with the operation of its railroad. The Pittsburgh J unction Company entered upon a part of this property, and commenced to lay ties and rails thereon, and to tear up the track that had been used by plaintiff for many years, and it was alleged that, if the defendant was permitted to go on, it would seriously interfere with and cripple the operation of the plaintiff’s road, and would ruin its roadbed, and render it unable to perform the duties imposed upon it towards the public. The defendant contended that it was authorized to locate its road between certain points, and it was obliged to run along the bank of the Allegheny river, and that it had a right to run where it did, and denied that all of the property used by the plaintiff in connection with the maintenance and operation of its railroad was used, or that it was all indispensable to plaintiff’s use. The supreme court held that the plaintiff road could consider the needs of the future, and that the defendant could not interfere with the present or future use contemplated by the plaintiff, and that no actual encroachments would be allowed. Perhaps the decision turned, in the opinion of the majority of the court, upon the ground that the defendant could have, without any trouble besides expense, constructed its road at another point, as the court say : “We are not embarrassed with the questions that would arise if the defendant company could not build-its road without laying its track through the plaintiff’s yard.” The minority opinion by Judge Tounkey is very brief, and we quote so much of it as is applicable to the facts at bar : “In this case the testimony clearly shows, and it was so found by the master, that there is ample room next the river where the appellant could lay its tracks without material injury to the property of the appellee. The inconvenience to and cost of changes by the appellee could be compensated in damages. The prudent appropriation of a parcel of land extending from low-water mark on the river to the hillside by the appellant, the whole of which land is not necessary for the uses of its road, ought not to bar the construction of another railway in the valley by a company subsequently chartered. ’ ’

About the same time that the Pennsylvania rule of absolute necessity was announced, the supreme court of Alabama, in Mobile & G. R. Co. v. Alabama M. R. Co., 87 Ala. 501, discussed, with a learning which generally characterizes the decisions of that respected court, the right of a railroad company to take by condemnation proceedings part of the property of another railroad company already devoted to a public use, and say : “As a general rule, a corporation to whom the right of eminent domain is delegated, having the right to locate the line of its road between the terminal points, has also the correlative right, to some extent, to select the lands to be taken. But the discretion must be reasonably exercised, so as to cause as little damage as is practicable; and if abuse in the selection is made apparent, the court before whom the proceeding is pending should interfere to control the discretion, and prevent the abuse by refusing an order of condemnation. (New York Central & H. R. R. Co. v. Metropolitan Gas-Light Co., 63 N. Y. 326; 6 Am. and Eng. Enc. Law, 541.) According to the rule stated above, the liability of any portion of the right of way of the Mobile & Girard Railroad Company, though not in actual use, to condemnation for the use of the Alabama Midland Railway Company, is subject to the qualification of a necessity therefor. It would be difficult to lay down any specific rule, as to the measure of the necessity, of sufficient scope to include all cases. It may be observed generally that necessary, in this connection, does not mean an absolute or indispensable necessity, but reasonable, requisite and proper for the accomplishment of the end in view, under the particular circumstances of the case. On the evidence, there is little room for doubt that the route selected by the Alabama Midland Railway Company to get into the city of Troy and out to the west is the most practicable, if not in its proper sense the only practicable, route.5 ’ (Anniston & C. R. Co. v. Jacksonville, G. & A. R. Co., 82 Ala. 297.)

Again, the absolute necessity rule not only will not consist with the express delegated authority to take the property of a corporation by virtue of eminent domain, but, if we carry it to its logical results, it is this, that where one corporation to which has been granted the right of taking property by eminent domain has exercised that right, it cannot be interfered with, except for crossings and intersections. This is fallacious. In mining districts it leads to exclusion. When a similar question arose in Illinois, Judge Breese, for the court, thus tersely disposed of it: “The argument, when reduced to its proper measure, is that, while the land of all other persons and corporations lying on the route of a railroad is subject to the power of eminent domain, that belonging to a railroad company is not thus subject. Such land must remain intact. We cannot assent to this proposition. ’ ’ (Peoria, P. & J. R. Co. v. Peoria & S. R. Co., 66 Ill. 174.) We find the federal court for the district of Colorado taking substantially the same view of the necessity rule as the Alabama court did. (Colorado E. Ry. Co. v. Union Pacific R. Co., 41 Fed. 293.) The Colorado Eastern Railway Company sought to condemn certain property within the limits of the city of Denver, claiming that the ground was necessary for its use for various railroad purposes. The defendant contended that the land was not of such necessity to the plaintiff as to justify the taking from defendant, and that the land had already been appropriated by defendant to its own use as a public railroad, and was eminently necessary to its prospective business. Philips, J., decided that the ground was necessary to the petitioner, because it was the only piece of ground available to the petitioner without entirely- changing the survey line and undertaking to accomplish its destination by a circuitous"route, and that it would not be a wise judicial discretion to compel the petitioner to adopt a road highly inconvenient, longer, and less available. It was plain in that case that another route could have been selected, and, aside from the matter of economy, with very much more ease than could the respondent, in the case at bar, choose another route for the Butte, Anaconda' & Pacific road; but the court evidently refused to follow the absolute necessity rule, and based its decision upon the more just doctrine of the necessity of the petitioner, founded upon the practicability, economy, facilities, and other considerations which should govern the determination of what the necessities may be, always considering the rights of the senior company, yet never forgetting the benefits to the public.

The laws of the state authorized the respondent to locate its railroad. It had a right to select the most feasible route, provided in doing so it did no unnecessary injury to the public or to the appellants. The law does not give to the respondent any predominent right over the appellants, though certainly the line of respondent should be so run as not to materially interfere with the efficiency of the Montana Union. (New York, H & N. R. Co. v. Boston H. & E. R. Co., 36 Conn. 196.) We find no violence done to these principles. The inconveniences inevitably incident to the crossing of one road by an - other are not violations of the principles. On the other hand, lands belonging to the Montana Union by way of easement and not actually in use by such company, or not actually necessary for the enjoyment of their franchise, should be upon the same footing as the land of the individual citizen. (Peoria P. & J. R. Co. v. Peoria & S. R. Co., 66 Ill. 174.)

It was never contemplated by the constitution that competition between railroads should not be sanctioned. On the contrary, our construction of the law is that it is the policy of this state, voiced in its constitution and statutes, to build up competing roads, rather than to deter them. If this were not so, why did the legislature expressly include the right to take lands already appropriated by one corporation and devote them to public use where the latter use was a more beneficial one than the former ? The mere fact that the easement is held by a corporation, and that another corporation takes it to sub-serve public use, cannot affect the principle so long as the second taking is for the greater public good. (Northern R. Co. v. Concord & C. R. Co., 27 N. H. 183.) Nor can the claim of a- superior equity of respondent be urged as a sound argument, based upon the fact that the appellants already have appropriated the property for public use. (Chicago, R. I. & P. R. Co. v. Town of Lake, 71 Ill. 333.)

The Montana Union accepted its easement with the reserved right in the state to retake it whenever the public necessity might require, provided, always, just compensation should be made when it might be retaken.

One public corporation cannot take the lands or franchises of another public corporation in actual use by it unless expressly authorized to do so by the legislature. But the lands of such a corporation not in actual use may be taken by another corporation, authorized to take lands for its use in invitum, whenever the lands of an individual may be taken, subject to the qualification that there is a necessity therefor. (2 Wood B. E. p. 856.)

We think this to be the true rule, and that opposing corporations may be limited to the enjoyment of that property in actual use by them, and that which is reasonably necessary for the safe,- proper and convenient management of their business, and the accomplishment of the purposes of their creation. (Mobile & G. R. Co. v. Alabama M. R. Co., supra.)

Upon this proposition we again refer to the opinion of J udge Philips (Colorado E. Ry. Co. v. Union Pacific Ry. Co., 41 Fed. 293), where it was held “that mere priority of acquisition, or even of occupation, gives no exclusive right, except in so far as the condemnation trenches on the greater necessities of the other franchise. ’ ’ As has been stated heretofore in this opinion, the right of way prayed for by the respondent in this case was not occupied, and the mere priority of the acquisition of the Montana Union must give way, under our laws, to the superior uses and greater needs of the Butte, Anaconda & Pacific Company, as more necessary to the public.

The learned counsel for the appellants have cited us to many cases besides the Pennsylvania ones already referred to. We will notice one or two principal ones. Barre R. Co. v. Montpelier & W. R. R. Co., (Vt.) 17 Atl. 923, simply decided that one railroad company, to avoid a sharp curve in its road, could not take the land of another company, as condemnation was sought upon the ground of convenience rather than necessity. We find nothing in the case to the effect that if the necessity existed still the ground could not be taken-.

Boston & M. R. Co. v. Lowell & I. R. Co., 124 Mass. 368, was decided upon the ground that there must be an express legislative grant to authorize a longitudinal road to be built upon the right of way of another road, and that the statutes did not contemplate such a taking, but the court recognized that cases may arise where the authority to take land already devoted to another railroad may be implied, either by the language of the act or from the application of the act to the subject-matter, as. where the railroad could not be laid, in whole or in part, by reasonable intendment, bn any other line.

We are cited by the appellants to the case of Illinois Cent. R. Co. v. Chicago, B. & N. R. Co., 122 Ill. 473, 13 N. E. 140. In that case one railroad sought to run within the right of way of another for a distance of eleven miles. A majority of the court held that one company could not take any part of the right of way of another except at a point of crossing, intersection, or union. The Illinois statute granting rights of way to railroad companies was substantially like the first portion of the fourth sub-division of section 600 of the laws of eminent domain (Comp. St. Mont. 1887, page 216), which is as follows : “All rights of way for any and all purposes mentioned in section 598, and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed or intersected by any other right of way, or improvements or structures * hereon. ”

It was argued to the court that the provisions of such a statute were broad enough to permit the taking of the right of way of one company by another, but it was decided that the taking contemplated was limited to crossings, intersections or unions, and not taking for another road longitudinally. Two judges dissented from that opinion, and although we do not find it necessary to approve or disapprove of the law of that case, we note that our statute seems to go further than the Illinois law, for with us it is expressly provided, in the latter part of the section just quoted : “They shall also be subject to a limited use in common with the owner thereof when necessary; but such use, crossings, intersections and connections shall be made in a manner most compatible with the greatest public benefit and least private injury. ’ ’ If the property to be subject to limited use in common with the owner means, generally, rights of way, longitudinal as well as others, and the statute does not restrict the application of the pronoun “they” to rights of way immediately connected with crossings and intersections, but enlarges the use of all rights of way when necessary, it would seem by no means unreasonable that conditions like those presented in the case under consideration were in the minds of the legislature at the time that this section became' a law, and that of necessity all rights of way shall be subject to a limited use in common -with the owner thereof.

Perhaps the statute may have meant, by using the word ‘‘ owner, ’ ’ the owner of the fee, to whom all rights in the property might revert if there were no longer any public use thereof, or it may mean the easement for use of the corporation which had acquired an easement over the property by virtue of the law of eminent domain. We simply refer to this matter in view of the citation made.

From the decision in the case of Railroad Oompany v. Moss, 23 Cal. 323, it appears the court did not consider the effect of any statute similar to ours granting the right to take land once appropriated, if. indeed there was any such statute in existence in California when that decision was rendered in 1863. It was held that there was no right to condemn or appropriate land along or upon a previously located line of another railroad company, except for crossing purposes. The court announced that, by its priority of location and appropriation, a railroad company acquired a ‘ ‘ vested right to its line of road and the land necessary for its construction, as prescribed by the railroad laws, of which it cannot be divested by another company who seek to appropriate the land for the same use.” We must decline to assent to this proposition as it is stated, without careful qualification and modification.

We cannot agree that the statute which authorizes lands to be appropriated for a more necessary public use means a different public use in all cases. If the legislature had intended that construction to be put upon the statute, instead of carefully restricting the right to a more necessary public use, they could easily have said a different public use. Besides, the view which we have discussed is consonant with those clauses of the constitution inhibiting discriminations, as already enumerated. If the appellants’ construction were adopted, the practical result would be the exclusion, oftentimes, of more than one railroad on mountain sides or in mountain gorges or precipitous gulches, or routes not embraced within the definitions of canyons, defiles, or passes, especially pro-Tided for by law. (Comp. St. 1887, div. 5, § 688, tit. ‘‘Bailroad Corporations.”) Considera practical application. A railroad company would take the maximum right of way. Now, if the right of eminent domain is not conferred upon the junior company to take lands for a public use, unless for a different use, the first railroad would be enabled to prevent any and all competition, because, oftentimes, any route off the right of way of the first would be, if not an absolutely impassible one, so impracticable and so enormously expensive, that it must as a reasonably necessary consequence deter another corporation from building at all.

To conclude, we adopt that construction which is more jealously careful of the best interests of the state, and say that, where a railroad company traversing the side of a mountain in a mining section has within its right of way tracts of ground not necessary to the proper, successful, and safe operation of its system of tracks and spurs, and not used by it in connection with any such operations, and in all reasonable probability not necessary for any such future use, if another road seeks the same objective points, and in doing so is obliged to take part of such unused right of way to avoid a considerably more circuitous route, at a different grade, of very much greater cost, and of serious damage to many mining properties in their subterranean and surface operations, and withal would be obliged by the topography of the mountains to parallel the adversary road a part of the way, under such conditions the use of the unused parts of the right of way of the one company by the other is a more necessary public use than that to which such unused portions are already appropriated. Wherefore, the law will permit the taking, regarding the interference as a ‘ ‘tolerable one, ” to be compensated by damages to be paid. (In re City of Buffalo, 68 N. Y. Í67.)

In concluding this opinion the court expresses its acknowledgment for the argument and research of counsel on either side. By their aid we have been greatly assisted to determine between the parties whether plaintiff could invoke the law of eminent domain in this case, — that power in the exercise of which, a modern writer (Randolph) says, is invariably provoked a direct issue between man and the state.

SPURS AND CROSSINGS.

Gagnon Spur Crossing. The order of the district court in relation to the Gagnon spur is more fully set forth in the statement of facts appended to this opinion. Its use to the defendants was for the delivery of supplies and fuel to the Gag-non mine. It was on the north side of the Montana Union track, while the mine is on the south sidé of the track and at such a distance from the railroad that supplies are hauled by wagon from the spur to the mine. "Where the plaintiff’s track crosses the Gagnon spur it is at the same level as the defendants’ track, but the spur descends from the time it leaves the Butte, Anaconda & Pacific track and the grade of the plaintiff’s track at the point of crossing is considerably above the spur grade. In view of the fact that it would be'plainly for the greater convenience of the appellant company to have the spur on the south side of their main track, the order of the district court in relation to this spur is modified, and unless plaintiff and defendants otherwise agree, the order of the district court will be that the Butte, Anaconda & Pacific Railway Company, at its expense, construct a spur, or rebuild the one already constructed upon the south side of the Montana Union main track; and, further, that the said Butte, Anaconda & Pacific company at its own expense construct and provide suitable and convenient approaches to said spur for teams and wagons, having due regard to the nature and facilities of transportation between the Gagnon mine and the Montana Union Company.

Buffalo Spur Crossing. There is a slight difference of ele vation of grades of the two roads at the Buffalo spur. The only practicable way of crossing at the point marked F on the map was to raise the grade of the track of the respondent from the switch of the main track as far as the crossing by the Butte, Anaconda & Pacific. No change was to be made on the main line, and the grade of the spur is to be the same as formerly from the crossing to the end of the spur. We think that the respondent should construct this crossing in the manner proposed, and at their expense entirely, unless it is agreed otherwise between the parties themselves.

Haggin Spur Crossing. The civil engineers take very different views of the feasibility of this crossing. A short distance from the crossing the Butte, Anaconda & Pacific Company found it necessary to construct a reverse grade leading to the Montana Union track. This made a ‘ ‘hump, ’ ’ as railroad men call it, — that is, an uphill and a downhill grade, — on the Butte, Anaconda & Pacific road a very short distance from the crossing. This, of course, was necessary to enable the Butte, Anaconda & Pacific to cross without disturbing the grade of the Montana Union track. The principal objection to it by the Montana Union witnesses was that it was impracticable and unsafe because of passing over the hump, and, considering the general grade of the railroad, the Butte, Anaconda & Pacific trains would break in two, and thus, by wreckage and other mishaps, the Montana Union tracks would be obstructed and their traffic materially interfered with. It is difficult for us to say, in the radical disagreements of skilled engineers, what the probable effect of this hump may be, but it occurs to us that, as its dangerous tendencies are all primarily towards accident to the Butte, Anaconda & Pacific, and only, indirectly to the Montana Union, the risk, if any, and the scientific error, if any, will fall much more heavily upon the respondent than upon the appellants, and that therefore it is proper for us to affirm the order of the district court.

We see no error in referring the question of damages for crossings to the commissioners, as was done by the order of the court. The statute covers the matter. (Comp. St. 1887, p. 218, § 607.)

The last objection of the appellants is to the order of the court giving the power and authority to the Butte, Anaconda & Pacific Company alone to employ and discharge watchmen at the crossings, for whose wages the plaintiff and defendants are jointly responsible. In view of the fact that the respondent company invokes the right to make these several crossings, it would seem quite just that the expenses of a watchman to guard the Haggin Spur crossing and others, if any, where the district court ordered watchmen, should be borne by the respondent alone. We see no objection to permitting the watchmen to be chosen by the Butte, Anaconda & Pacific Company, and it will be directed by this court that the order of the district court shall be modified so as to impose the expenses of watchmen entirely upon the respondent corporation.

Let the judgment and order of the district court be remanded for modification in conformity with the views expressed in this opinion, and when so modified it will stand as affirmed.

Modified cmd Affirmed.

Pemberton, C. J., and De Witt, J., concur.