of the state as that exercised over other by overwhelming authority. Chicago & N. parts of the railroad system. Such a spur W. R. Co. v. Morehouse, 112 Wis. 1, 56 is essentially a public spur. Such a use L.R.A. 240, 88 Am. St. Rep. 918, 87 N. W. of the railroad right of way is essentially 849; Chicago, B. & B. R. Co. v. Porter, 43 a public use, a devotion to legitimate rail- Minn. 527, 46 N. W. 75; State, De Camp, road purposes. Prosecutor, v. Hibernia Underground R. Co. 47 N. J. L. 43; Butte, A. & P. R. Co. v. Montana Union R. Co. 16 Mont. 504, 31 L.R.A. 298, 50 Am. St. Rep. 508, 41 Pac. 232; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155, 3 N. E. 448; St. Louis, I. M. & S. R. Co. v. Petty, 57 Ark. 359, 20 L.R.A. 434, 21 S. W. 884; Kettle River R. Co. v. Eastern R. Co. 41 Minn. 461, 6 L.R.A. 111, 43 N. W. 469; National Docks R. Co. v. Central R. Co. 32 N. J. Eq. 755; Hays v. Risher, 32 Pa. 169; Zircle v. Southern R. Co. 102 Va. 17, 102 Am. St. Rep. 805, 45 S. E. 802.

As said by the supreme judicial court of Maine, in a case involving the exercise of the right of eminent domain: "The tests decisive of this question as to whether a branch track of this character is to be constructed and operated for public or private purposes, deducible from the great weight of authority upon the question in this country, are these: If the track is to be open to the public, to be used upon equal terms by all who may at any time have occasion to use it, so that all persons who have occasion to do so can demand that they be served without discrimination, not merely by permission, but as of right, and if the track is subject to governmental control, under general laws, as are the main lines of a railroad, then the use is a public one." Ulmer v. Lime Rock R. Co. 98 Me. 579, 66 L.R.A. 387, 57 Atl. 1001.

As said by the supreme court of Utah: "The test is, Will any and all persons and business institutions who may have occasion to do so be permitted to use it? That is, will the track be open to public use generally? If so, then it is a public utility." Stockdale v. Rio Grande Western R. Co. 28 Utah, 201, 209, 77 Pac. 851.

As said by the supreme court of Iowa: "And we think that it makes no difference that the mine owner may be the only member of the public who may have occasion to use the way after it has been established. 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, 33, 18 N. W. 661.

We can conceive of no sound reason to hold that a use sufficiently public to sustain the exercise of the delegated sovereign power of eminent domain by a railroad company, to acquire a right of way as for a public use, would not be equally a public use as applied to a use for the same purpose of a right of way already owned by the railroad company. It is merely speciously correct to say that a part of the railroad's right of way is appropriated to the use of the special industry. If, as is undoubtedly true, the owner of the given in. dustry, as a member of the public, has a right to participate in the public service to which the railroad and its right of way are devoted, and the spur when built is open to the use on equal terms of every other member of the public who may desire to use it, then the part of the right of way so used is, on all authority, appropriated to a public use.

The case of Healy Lumber Co. v. Morris, 33 Wash. 490, 63 L.R.A. 820, 90 Am. St. Rep. 964, 74 Pac. 681, has no application. That case merely held that a private logging road is not a public utility, and hence the power of eminent domain cannot be exercised in aid of it. Under a later statute And, as said by the Supreme Court of (Rem. & Bal. Code, §§ 7106-7109; P. C. the United States: "The uses for which 405, §§ 429-435), authorizing the organizathe track was desired are not the less pub- tion of logging roads with the duty of lic because the motive which dictated its general transportation of logs and other location over this particular land was to timber products, such a road is held to be reach a private industry, or because the a public utility, though its primary purproprietors of that industry contributed in pose is to conduct its own business as a any way to the cost." Hairston v. Danville | logging company, and carry its own & W. R. Co. 208 U. S. 598, 608, 52 L. ed., products. The mere fact that any member 637, 641, 28 Sup. Ct. Rep. 331, 13 Ann. Cas. of the public may require the transporta1008. tion of logs over the road on reasonable That a spur track intended primarily for terms makes of it a public utility and, as the immediate use of a single shipper, but such, capable of exercising the power of open upon reasonable terms to the use of eminent domain. State ex rel. Clark v. all members of the public who may have oc- Superior Ct. 62 Wash. 612, 114 Pac. 444. casion to use it, is a public use is sustained' On the main principle the case here is an

1

may be required, at the expense of the applicant for an industrial spur, to acquire a right of way for the spur not exceeding 2 miles in length. The supreme court of that state in sustaining the statute uses lan

exact parallel. The spur track, though primarily intended for the use of the applicant, will, when constructed, be open to the use of any member of the public desiring to use it. It will be just as much a public spur as that now found at Whittier.guage so clearly applicable to our own statBoth will be subject to the reasonable use of the public.

The spur track must not exceed 2 miles in length; (2) it must be practically indispensable to the successful operation of the existing or proposed plant, industry, or enterprise; (3) its construction and operation must not be unusually unsafe and dangerous; and (4) it must not be unreasonably harmful to public interest. The legislature has delegated to the Railroad Commission the power to determine whether or

ute that we quote from it at some length: "It will be observed from the first subSuch a sidetrack as that contemplated division of the section that four facts must by the statute and order here in question coexist before a railroad can be compelled is, in no just sense, a mere private con- to acquire a right of way, construct, mainvenience any more than is the railroad it-tain, and operate a spur track namely: (1) self. It is ancillary to and in aid of the public service. The statute proceeds upon the just and reasonable theory that, as a part of the public service undertaken by a common carrier, there is a duty to permit every member of the public, at the entire expense but also at the least expense of that member, to provide the means indispensable to a participation in the public service whenever such means do not unreasonably interfere with the general serv-not these four facts coexist. If the Comice or operation of the public utility, and whenever such means so provided are open to the use of the public on equal terms. The public service is but the aggregate of the service accorded to private enterprises and individuals. Any unreasonable restriction of the service as to any individual is therefore an unreasonable impairment of the public service. These considerations make it clear that the track, when built, becomes an integral part of the public utility, a portion of the railroad system. Nor does the fact that the initial cost, both of materials and of the construction of the spur, is to be borne by the person primarily to be served deprive the spur of its essential character as an integral part of the public utility. This does not make it a private track, nor change the nature of its use. Hairston v. Danville & W. R. Co. supra. The statute expressly prohibits such a result by providing that, subject to an equi-States. table division of the initial cost, the track is at the service of the public as much as is any other part of the railroad system. The owner of the industry primarily served has no control over the spur, nor any interest in it other than the right of being served by it, and that right is shared equally by every other person who may desire to share it. The control of the railroad company over it is as complete as over any other part of its system, and is subject only to state control or regulation under the general laws.

mission finds that they do, then, upon the statute being complied with, the railroad is required to build the track; otherwise, not. The exercise of such power by the Railroad Commission is not the exercise of legislative power, and may therefore be delegated to it. State ex rel. Minneapolis, St. P. & S. Ste. M. R. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. 846; Wayman v. Southard, 10 Wheat. 1, 6 L. ed. 253; State ex rel. Kenosha Gas & E. Co. v. Kenosha Electric R. Co. 145 Wis. 337, 129 N. W. 600. Plaintiff's challenge the constitutionality of the statute on the ground that the sidetracks provided for are private, and that land taken for right of way for such sidetracks is taken for a private and not for a public use, contrary to the provisions of § 13, art. 1, of the Constitution of this state, and contrary to the provisions of the 14th Amendment to the Constitution of the United

If it be conceded that the sidetracks are private, then the objections raised by plaintiff's must be deemed well taken. But the case of Chicago & N. W. R. Co. v. Morehouse, 112 Wis. 1, 56 L.R.A. 240, 88 Am. St. Rep. 918, 87 N. W. 849, negatives such a concession. It was there held that the taking of land for a sidetrack under § 1831a, Stats. (1898), was a taking for a public use, even though the sidetrack ran to a single industry and the owners thereof were to bear a large part of the expense. Such track, when built, becomes a portion of the trackage of the railroad. The fact that its initial cost is borne by the party primarily to be served, with provisions for subsequent equitable division of such cost, does not make it a private track, nor change the nature of its use. Over it the products of the industry find their way

necessity, safety, right of public use, compatibility with public interest, and control by the railroad subject only to state control,-is provided for, safeguarded, and guaranteed by our own statute and the order here involved. We are constrained to hold that this statute is not violative of the due process of law clause, either of the state or of the Federal Constitution.

into the markets of the world, and every, Every element found by the supreme court consumer is directly interested in the of Wisconsin as making the act constitulessened cost of such products resulting tional,-namely, indemnity, reasonableness, from the building and operation thereof. That these products are supplied by a single owner, or by a limited number of owners, affects the extent and not the nature of its use the track is none the less a part of the avenue through which the commodities reach the public. Subject to the equitable division of initial cost, the track is at the service of the public as much as any other, and it constitutes an integral III. The respondent contends that the part of the railroad system. The duty to spur ordered will interfere with interstate maintain and operate it rests upon the rail- commerce, and hence the order is void as road. Except that it is relieved of the in conflict with § 8 of article 1 of the initial cost of right of way and construc- Federal Constitution. Whether the operation, the track stands in the same relation tion of the spur will so interfere is, of to it that any other portion of its track course, a question of fact. We have exdoes. The owner of the industry obtains no amined the evidence with care, and we think interest in or control over it beyond that it wholly fails to show any such interferof being served by it equally with anyone ence with the usual and ordinary operation else who may desire to use it. And this is of the road as to have an appreciable effect the crucial test as to whether or not the upon its interstate business. The Commistrack is a private or public one. If it is sion found, on what we deem sufficient eviopen to the use of anyone who may desire, dence, that “such a spur is reasonable and upon equal or equitable terms, and is sub- practicable, and can be put into operation ject to state control under general laws, with reasonable safety." The trial court it is a public track, irrespective of the made no contrary finding but tacitly acceptdegree of the probability of anyone else ed the findings of the Commission on quesusing it. or the extent of such use. Chi- tions of fact. There is no merit in the argucago & N. W. R. Co. v. Morehouse, supra; ment that if this spur can be established Ulmer v. Lime Rock R. Co. 98 Me. 579, 66 then every industrial plant along the road L.R.A. 387, 57 Atl. 1001. That such tracks may rightfully demand one. The answer is, are to be open to the use of the public gen- of course so, if the demand, after a hearerally is clearly evidenced by the statute, ing on notice, be found reasonable in view for it speaks of the industry primarily to of all surrounding conditions, including be served, and makes provision for others securing the same service by sharing in safety and the number, proximity, and the initial cost, thus evincing a clear intent accessibility of other spurs; and of course to subject the track, upon equitable terms, not if, on such hearing, the demand be to the use of anyone who may require it. found unreasonable from any cause. Its operation too is subject to state control under general laws, and neither the railroad nor the owner of the industry can, in any respect, interfere with such control." Union Lime Co. v. Railroad Commission, 144 Wis. 523, 129 N. W. 609.

The order of the Commission is sustained. The judgment of the trial court is reversed.

Crow, Ch. J., and Fullerton, Main, and Morris, JJ., concur.

Annotation-Power to compel railroad to build, maintain, or connect with sidetrack for the accommodation of shippers.

This question is discussed in the notes to State ex rel. Mt. Hope Coal Co. v. White Oak R. Co. 28 L.R.A.(N.S.) 1013, | and McInnis v. New Orleans & N. E. R. Co. L.R.A.1915E, 682.

track facilities to industries adjacent to its tracks as shall be found to be necessary and reasonable under all the circumstances, and may apportion the necessary expense therefor between the In Ochs Brick & Tile Co. v. Chicago company and the industry in such man& N. W. R. Co. (1917) 135 Minn. 323, ner as shall be found to be reasonable. L.R.A.-, P.U.R.1917C, 235, 160 To the same effect is Range Sand Lime N. W. 866, it was held that the state, Brick Co. v. Great Northern R. Co. under its police power, may require a (1917) Minn. ante, 784, P.U.R. railroad company to provide such side-1917F, 525, 163 N. W. 656, holding that

an order requiring the railroad company to bear a portion of the expense of constructing a spur track to a brick manufacturing plant about 1,000 feet from the main track was not a taking of property for private use.

the fact that a siding is to extend to some point on the public highway does not alter the rule.

it.

In STATE EX REL. CHICAGO, M. & P. S. R. Co. v. PUBLIC SERVICE COMMISSION, ante, 786, it will be observed that the The act of Congress (Act June 29, spur, although intended for the imme1906, chap. 3591, § 1) conferring juris- diate use of a particular shipper, was diction upon the Interstate Commerce open to the use, upon reasonable terms, Commission to require switch connections of all shippers who might desire to use to be made with private sidetracks where such connection is reasonably practicable and will furnish sufficient business of an interstate character to justify the same, does not deprive a state commission of jurisdiction to require switch connection to be made with a private sidetrack where the business of an intrastate character is sufficient to warrant the making of such an order. Chicago, R. I. & P. R. Co. v. State (1916) Okla. L.R.A. 1916F, 1281, 157 Pac. 1039.

And in Com. v. Washington & O. D. R. Co. (1916; Va.) P. U. R. 1916D, 716, the Virginia Corporation Commission held that the fact that the shipments to an owner abutting on an industrial spur track are interstate commerce does not deprive the Virginia Commission of jurisdiction of his complaint to require the railroad to rebuild the spur where it is used by the railroad both for interstate and intrastate commerce, and the rebuilding will be in aid of interstate commerce and enable the railroad to do both classes of business more efficiently.

In Oconto Co. v. Chicago & N. W. R. Co. (1917; Wis.) P. U. R. 1917F, 370, the Wisconsin Commission held that it cannot refuse to order a railroad to construct a spur or industrial track at the expense of the shipper applying therefor, who has met the requirements of the Spur Track Law, although the Commission has previously refused the railroad a certificate of convenience and necessity to extend its lines into the same territory in competition with another company; the requirements of the Certificate of Convenience and Necessity Law with reference to duplication of railroads not applying to the construction of spur tracks.

In Main Line Stone Co. v. Philadelphia & W. R. Co. (1916; Pa.) P. U. R. 1917C, 70, the Pennsylvania Public Service Commission held that the fact that a shipper agrees to assume the expense necessary to grade, drain, and ballast the roadbed of a proposed switch or sidetrack does not alter the rule that a railroad company cannot be compelled to construct such a facility on its own ground for the use of an individual shipper.

In Re Lycoming Edison Co. (1916; Pa.) P. U. R. 1917C, 73, the Pennsylvania Public Service Commission held that it has no power to compel a railroad company to construct either a branch road or a switch across private property to connect two pieces of railroad track owned by a shipper, and thus provide access to the railroad, where the company would be obliged to acquire the right of way by condemnation proceedings.

The Oklahoma Commission has no power to require a railroad company to construct a switch track to an industry located within 2 or 3 feet from the railroad right of way under a constitutional provision (Okla. Const. § 33, art. 9) authorizing the Commission to require railroads to build a connection with a private switch track built by the owner of an industry. Chicago, R. I. & P. R. Co. v. State (Okla.) supra.

In Alabama C. R. Co. v. Alabama Public Service Commission (1917) Ala. —, L.R.A. —, —, 76 So. 862, it was held that a railroad company having a mere license to use the tracks of a lumber company cannot be compelled to put in sidings to serve rivals of the track owner. A. L. R.

It was also held in the above case that 801.

ment as a conversion of such property and | amount of $203.85 and costs, but at the recover the full value of the same, with in- same time suffered an order of dissolution of terest thereon from the date of such attach- the attachment on Wade's motion, because ment, is not absolute, but dependent upon of his (Ray's) failure to make proof of the his timely election to do so; and when he procures an order dissolving such attach-ground alleged for the attachment, although ment, and for the return of the property to this order of dissolution was stayed for himself upon the expiration of a stay and thirty days by further order and by supersupersedeas obtained in anticipation of an sedeas bound in anticipation of an appeal appeal therefrom by the plaintiff in the that was never perfected by Ray, so as to attachment, who is defendant in such subse- give this court jurisdiction. In this order quent action for damages, and when imme- of dissolution and stay, the journal entry of diately after procuring such order, he know which was filed by Wade on November 15, ingly suffers such property to be taken on 1910, there was a further order for the reexecution in such prior action to satisfy a judgment for debt obtained by the plaintiff turn of the property to Wade at the end of in that action, without in any manner exerthe stay and supersedeas. Immediately aftcising his right of election, or manifesting er the judgment for said sum of $203.85 his purpose to do so, especially where the and costs and the dissolution of the attach. attachment is not "fraudulent, malicious, ment, and before the attached property had or oppressive," the defendant in such latter been returned to Wade or the journal entry action is entitled to show, as against the of said dissolution had been filed for record, plaintiff's assertion of such right therein Ray, in effect abandoning the attachment and in mitigation of damages, the seizure and sale of such property on such execution, proceedings, procured the issuance of a writ and the application of the proceeds thereof of execution on his said judgment, and on on such judgment. An instruction to the November 14, 1910, caused the same to be jury in such action for damages, to the ef- levied on said crop of cotton, and thereafter, fect that the plaintiff is entitled to recover in due time and course of such proceedings, only such damages as were sustained by to be sold for $587.92, which amount was him by reason of such attachment and de- duly paid over to the clerk of the court for tention of such property thereunder until the same was taken on such execution is proper application in that action of Ray against Wade. not error entitling the plaintiff, who recovered less than the full value of the

property as his damages, to another trial. For other cases, see Damages, III. g and s, in Dig. 1-52 N. S.

In the instant case of Wade against Ray, the plaintiff demanded, as against the defendant Ray, $1,643, plus $50 as a reasonable attorney's fee, and as against the defendants Clarkson and Moore, as Ray's sureties upon the statutory undertaking in the attachment case, $406 of the amount demanded of Ray; but upon a trial to a jury Wade recovered against Ray, Clarkson, and Moore a verdict and judgment for only $125, including a reasonable attorney's fee of not more than $50, under instructions, over his (Wade's) objection, to the effect that he was entitled to recover only the amount of damages sustained by him by reason of the seizure of said crop of cotton under the writ of attachment on October 28,

Messrs. West, Hull, & Hagan for de- 1910, and its detention thereunder until fendants in error.

November 12, 1910, with a reasonable at torney's fee not to exceed $50 additional,

Thacker, J., delivered the opinion of the and was not entitled to recover, as he

court:

The plaintiff in error, Wade, as plaintiff in the trial court, commenced this action on May 24, 1911, against the defendant in error Ray, as principal, and his codefendants in error, Clarkson and Moore, as his (Ray's) sureties, for damages resulting from his (Ray's) wrongful attachment of Wade's crop of cotton on October 28, 1910, under a writ issued on the 26th day of that month in an action by Ray against Wade for debt, in which Ray, on November 12, 1910, recovered judgment against Wade to the

(Wade) claimed and still claims, the full value of said property at the time it was seized, with legal interest thereon for its conversion, without any deduction therefrom; and the plaintiff, Wade, being dissatisfied with the said instruction and the amount of his recovery, brings the case here for review upon the proposition that, when he was wrongfully deprived of his property on October 28, 1910, by the said attachment, his cause of action for conversion was complete, and he was then entitled to recover the full value of his property at that date,