The opinion of the court was delivered by
Beéwee, J.:
The defendant in error brought his suit in the district court upon the following instrument of writing, claiming damages for the breach thereof:
[607]*607“ Know all men by these presents, that for and in consideration of one hundred dollars in hand paid by the St. Joseph & Denver City Railroad Company, a corporation organized under the laws of the state of Kansas, I do hereby give, grant, bargain and sell unto said Railroad Company the right of way through the following described lands, situated in the county of Doniphan and state of Kansas, to-wit: the northeast quarter of section nineteen, the northwest quarter of section nineteen, and the northwest quarter of section twenty-nine, all in township three, of range twenty; said right of way to be on the route at present surveyed through said land, and commonly known as the "Wolf River route; and said right of way to be eighty feet through said lands, except where the depot hereinafter mentioned shall be located on said land, and at the place of locating such depot said right of way shall be one hundred feet wide for a sufficient distance for all switches and side-tracks required for the use of said depot.
“This conveyance is made upon the express conditions following: Said railroad shall, immediately on the completion of their railroad through said lands, establish a depot for freight and passengers on said land, and shall keep up and maintain the same for all time; and shall not at any time have or yse any other depot within three miles of said depot; and said Company shall, where the route of said railroad passes through timber on said lands, under the directions of the grantor herein, clear said timber off the track of said railroad and pile the same up off the right of way for the use of the grantor in this deed; and the said grantor and the members of his family shall have the right to travel in the cars of the said Company free of char’ge, for all time to come, from the residence of the grantor to Elwood, in Doniphan county, and from said Elwood to said residence; and that so much of the right of way of the route as is known as the Highland route as is not included in this deed, shall by said Railroad Company be abandoned to the grantor herein; and the grantor herein shall have the right to locate the depot hereinbefore mentioned on either of the tracts of land herein conveyed, provided such selection or location shall be on a tangent of at least 700 feet in length.
“Upon the breach of any of the above conditions by said Railroad Company or assigns, then this conveyance shall be utterly void. It is understood and agreed tha‘t the grantee and their assigns shall’-build all cattle-guards and crossings [608]*608required by the grantor in the use of the lands aforesaid, through which said track passes. Signed, sealed this 24th of August, 1869. Joel Ryan, [seal.]”
The case turns upon the validity of this instrument. Can a railroad company in consideration of the right of way, bind itself to build a depot on the grounds through which the right of way is obtained, and not to have or use any other depot within a given distance ? Is a contract not to build or use a depot within certain limits a valid and binding contract ? Railroad companies are private corporations; yet they are declared to be quasi public agencies, and their roads to subserve to a certain extent public purposes, so much so that the public may be taxed to aid in their construction. (Leavenworth Co. v. Miller, 7 Kas., 479.) It would seem to follow that the public has a right to say that they shall not be permitted, though private corporations, to make any contract which would prevent them from accommodating the public in the matter of transportation and travel. The contract sued upon is a continuing one, to last through all time; and if valid, no matter what may be the changes of population, or the demand of business, the company is festrained from having or using other than the one depot within the limits of six miles. That at the time of the contract there was but a scanty population in the vicinity, cannot affect the question, for no one can foresee where or how population may center in the future. Eighteen years ago, no one could foretell the present size and population of Atchison, Leavenworth, or Topeka; yet like contracts, if valid might to-day operate to deprive each of them of the facilities of depots. And if the present amount of population does not affect the question, can a railroad company contract not to furnish any given community through which its road passes, with the conveniences of a depot, and not to use one if furnished by others ? Can the Missouri Pacific Railroad contract with the town of Delaware, not to build dr use a depot at Leavenworth ? or with the town of Lawrence, not to build or use a depot at Leavenworth; or with the town of Sumner, not to [609]*609build or use one in Atchison? Can it thus contract to force trade and travel out of its natural and selected channels? The question is an important one, and deserves, as it has received, careful consideration at our hands. That railroad corporations do by the construction and management of their roads alter materially the course of trade and travel, is obvious. That in their management, they come far short of accommodating the public, or supplying its necessities, no one 'will question. In the road they build, the route they select in the purchase of the right of way, the location of depots, the running of trains, the amount and character of the rolling-stock, in short, in the whole organization, construction, management and machinery of railroads, the corporators have an eye to private interests and pecuniary gain. There is nothing in this peculiar to railroad corporations. All corporations, private in their nature, do the same. Self-interest controls all their operations. It so happens that self-interest and the interest of the public, as a general rule, demand the same course of action. The more the wants of the public are supplied, the greater the use it will make, and thus the greater the gains of the corporators. Hence there are not many cases in the books in which the contracts of railroad corporations have been declared void as against public policy. Railroad corporations are, as we have seen, public agencies, and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty, and cannot be enforced. They are under obligations to use the utmost human sagacity and foresight in the construction of their roads to prevent accidents to passengers. A contact that they will not use such sagacity and foresight, certainly cannot be upheld. They are under obligations to employ skillful and competent engineers to manage their engines, and other competent employees to superintend and take care of the running of their trains. A contract that they will not employ such agents and servants, [610]*610is certainly void. They are bound to furnish reasonable facilities for the transportation of freight and passengers, both as to the quality and quantity of cars and coaches and the number of trains, and a contract not to furnish such facilities will not be tolerated.
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The opinion of the court was delivered by
Beéwee, J.:
The defendant in error brought his suit in the district court upon the following instrument of writing, claiming damages for the breach thereof:
[607]*607“ Know all men by these presents, that for and in consideration of one hundred dollars in hand paid by the St. Joseph & Denver City Railroad Company, a corporation organized under the laws of the state of Kansas, I do hereby give, grant, bargain and sell unto said Railroad Company the right of way through the following described lands, situated in the county of Doniphan and state of Kansas, to-wit: the northeast quarter of section nineteen, the northwest quarter of section nineteen, and the northwest quarter of section twenty-nine, all in township three, of range twenty; said right of way to be on the route at present surveyed through said land, and commonly known as the "Wolf River route; and said right of way to be eighty feet through said lands, except where the depot hereinafter mentioned shall be located on said land, and at the place of locating such depot said right of way shall be one hundred feet wide for a sufficient distance for all switches and side-tracks required for the use of said depot.
“This conveyance is made upon the express conditions following: Said railroad shall, immediately on the completion of their railroad through said lands, establish a depot for freight and passengers on said land, and shall keep up and maintain the same for all time; and shall not at any time have or yse any other depot within three miles of said depot; and said Company shall, where the route of said railroad passes through timber on said lands, under the directions of the grantor herein, clear said timber off the track of said railroad and pile the same up off the right of way for the use of the grantor in this deed; and the said grantor and the members of his family shall have the right to travel in the cars of the said Company free of char’ge, for all time to come, from the residence of the grantor to Elwood, in Doniphan county, and from said Elwood to said residence; and that so much of the right of way of the route as is known as the Highland route as is not included in this deed, shall by said Railroad Company be abandoned to the grantor herein; and the grantor herein shall have the right to locate the depot hereinbefore mentioned on either of the tracts of land herein conveyed, provided such selection or location shall be on a tangent of at least 700 feet in length.
“Upon the breach of any of the above conditions by said Railroad Company or assigns, then this conveyance shall be utterly void. It is understood and agreed tha‘t the grantee and their assigns shall’-build all cattle-guards and crossings [608]*608required by the grantor in the use of the lands aforesaid, through which said track passes. Signed, sealed this 24th of August, 1869. Joel Ryan, [seal.]”
The case turns upon the validity of this instrument. Can a railroad company in consideration of the right of way, bind itself to build a depot on the grounds through which the right of way is obtained, and not to have or use any other depot within a given distance ? Is a contract not to build or use a depot within certain limits a valid and binding contract ? Railroad companies are private corporations; yet they are declared to be quasi public agencies, and their roads to subserve to a certain extent public purposes, so much so that the public may be taxed to aid in their construction. (Leavenworth Co. v. Miller, 7 Kas., 479.) It would seem to follow that the public has a right to say that they shall not be permitted, though private corporations, to make any contract which would prevent them from accommodating the public in the matter of transportation and travel. The contract sued upon is a continuing one, to last through all time; and if valid, no matter what may be the changes of population, or the demand of business, the company is festrained from having or using other than the one depot within the limits of six miles. That at the time of the contract there was but a scanty population in the vicinity, cannot affect the question, for no one can foresee where or how population may center in the future. Eighteen years ago, no one could foretell the present size and population of Atchison, Leavenworth, or Topeka; yet like contracts, if valid might to-day operate to deprive each of them of the facilities of depots. And if the present amount of population does not affect the question, can a railroad company contract not to furnish any given community through which its road passes, with the conveniences of a depot, and not to use one if furnished by others ? Can the Missouri Pacific Railroad contract with the town of Delaware, not to build dr use a depot at Leavenworth ? or with the town of Lawrence, not to build or use a depot at Leavenworth; or with the town of Sumner, not to [609]*609build or use one in Atchison? Can it thus contract to force trade and travel out of its natural and selected channels? The question is an important one, and deserves, as it has received, careful consideration at our hands. That railroad corporations do by the construction and management of their roads alter materially the course of trade and travel, is obvious. That in their management, they come far short of accommodating the public, or supplying its necessities, no one 'will question. In the road they build, the route they select in the purchase of the right of way, the location of depots, the running of trains, the amount and character of the rolling-stock, in short, in the whole organization, construction, management and machinery of railroads, the corporators have an eye to private interests and pecuniary gain. There is nothing in this peculiar to railroad corporations. All corporations, private in their nature, do the same. Self-interest controls all their operations. It so happens that self-interest and the interest of the public, as a general rule, demand the same course of action. The more the wants of the public are supplied, the greater the use it will make, and thus the greater the gains of the corporators. Hence there are not many cases in the books in which the contracts of railroad corporations have been declared void as against public policy. Railroad corporations are, as we have seen, public agencies, and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty, and cannot be enforced. They are under obligations to use the utmost human sagacity and foresight in the construction of their roads to prevent accidents to passengers. A contact that they will not use such sagacity and foresight, certainly cannot be upheld. They are under obligations to employ skillful and competent engineers to manage their engines, and other competent employees to superintend and take care of the running of their trains. A contract that they will not employ such agents and servants, [610]*610is certainly void. They are bound to furnish reasonable facilities for the transportation of freight and passengers, both as to the quality and quantity of cars and coaches and the number of trains, and a contract not to furnish such facilities will not be tolerated. So, though one train a day with one freight car and one passenger coach might be at present amply sufficient to do all the business between two given places, yet a contract never to run but the one train a day with the one car and coach, could not be upheld, for the necessities of trade and travel are varying, and it is the duty of the company to adjust its capacities and facilities for business to these varying necessities. Upon the same principle it is the duty of a railroad company to furnish reasonable depot facilities. The number and location of the depots, so as to constitute reasonable depot facilities, vary with the changes and amount of population and business. A contract to leave a certain distance along the line of the road destitute of depots, .is in contravention of this duty. The case of Fuller v. Dame, 18 Pick., 472, is in principle very much in point. In that case a note was declared void whose consideration was an agreement successfully carried out to induce a corporation to locate its depot in the vicinity of certain lands of the payee of the note. In giving the opinion of the court, (page '482,) Chief Justice Shaw makes these very pertinent suggestions: “It is obvious that if one large landholder may make a valid conditional promise to pay a large sum of money to a stockholder, or influential citizen, on condition that a work of great public improvement may be so fixed as to enhance the value of his estate, all other great landholders may make like promises, or similar conditions, and great public works which should be conducted with a view to the public interest and to tlie just rights of those who make advances for the-public benefit, would be in danger of being overlooked and sacrificed in a mercenary conflict of separate local and private interests.” See also the case of the Pacific Rld. Co. v. Seeley, 45 Mo., 212; State v. H. & New Haven Rld. Co., 29 Conn., 538.
We have considered this case as it was considered in the [611]*611court below, as showing a contract on the part of the plaintiff in error not to build or use a depot within certain limits, for the breach of which damages were awarded by the jury. .It would not be proper for us to inquire at present in what condition the rights of the parties are left by this decision.' The judgment will have to be reversed and the case remanded, leaving each 'party to take such subsequent steps for the enforcement of his rights as may be judged best.
Kingman, C. J., concurring.