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by the plaintiffs, who were merchants, to take 100 cases of figs in his lighter from Mills' Wharf, in Thames street, to the Magnet" steamer, which lay in the river Thames, and then as the figs were on board the lighter, which was proceeding with them to the Magnet," the lighter was run down by the "Menai " steamer and the figs all lost. It was proved that the defendant had a counting-house with his name and the word lighterman" on the doorposts of it, and that he carried goods in his lighters from the wharves to the ships for anybody who employed him. Baron Alderson delivered the following opinion: "Everybody who undertakes to carry for any one who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a man holds himself out to do it for every one who asks him, he is a common carrier; but if he does not do it for every one, but carries for you and me only, that is matter of special contract. Here we have a person with a counting-house, 'lighterman' painted at his door, and he offers to carry for every one." 7

TOPIC B-PRIVATE BUSINESS.

106. Employment in private business.

When a person employs a vehicle to convey persons or property to or from his place of private business, such carriage is not common carriage, even if he incidentally allows other persons not having business with him to ride or carries as a matter of accommodation goods for other persons. But though the motive for establishing a route is to accommodate a certain business, if it offers to accommodate all persons who may find it useful, the case is one of public employment. "If all the people have the right to use the road, it is a public use or in

7 See to the same effect, Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338 (1874); Boyers v. Moss, 18 Vict. L. R. 225 (1892).

terest, although the number who have business requiring its use may be very small." 1

The distinction was forcibly put in the case of Ulmer v. Lime Rock Railroad : 2 "If the branch track is to be built solely and exclusively for the benefit and accommodation of the railroad company and of the owner of the private business enterprise, it may well be said that it would serve no public purpose and would be of no public use, although the existence of such a track might be of great, but indirect, benefit to the community, by enabling the private enterprise to be carried on, and in thereby giving employment to labor. But the mere fact that the primary purpose of such a branch is to accommodate a particular private business enterprise is by no means a controlling test. The character of the use, whether public or private, is determined by the extent of the right by the public to its use, and not by the extent to which that right is or may be exercised. If it is a public way in fact, it is not material that but few persons will enjoy it. When such a branch track is first constructed, and the right of way necessary therefor is taken, it may in fact be used only for the business of the plant to which it is constructed, because at that time no other business enterprise may exist in that vicinity to furnish freight for transportation; but in the future other enterprises may spring up, either upon the line or upon the extension thereof, so that a branch track which in the first instance is primarily constructed for the accommodation of one may become of equal accommodation, benefit and use to others."

$107. Private ferries.

So where a merely private ferry is established to convey persons to and from the premises of a private individual, who may

1 Kettle River R. R. v. Eastern Ry., 41 Minn. 461, 43 N. W. 469, 6 L. R. A. 111 (1889).

298 Me. 579, 57 Atl. 1001 (1904).

refuse to receive any person upon his premises, such a ferry is not carrying on a public employment. Such is a ferry established to convey persons to a picnic ground; 3 a wherry regularly conveying the laborers of its owner to their work; and a skiff which is offered as a free conveyance to persons who will come to the store of its owner for trade; 5 or a ferry which conveys customers to his mill, even if in the boat other persons are sometimes transported as a matter of accommodation, and give a gratuity to the servant managing the boat. So, where several parties joined to maintain a boat for the purpose of conveying their cattle across a river to a slaughter-house the conveyance was not common carriage.8

§ 108. Private railroad.

In the same way, a railroad constructed and used merely in connection with the conduct of a private business is not a common carrier. So, where a railroad is built to haul logs from the forest to the saw-mill of the owner, it is not a common carrier.9 It cannot be seriously contended, said the Circuit Court of Appeals, that an article of the State Constitution which dealt with corporations of public improvement and utility, "was intended to, or could be so construed as to, make out of a logging railroad appurtenant to a saw-mill, constructed wholly on private grounds, and operated for private purposes, a common carrier charged with all the duties and responsibilities incumbent by the laws of the land upon common carriers, and simply because

3 People v. Mago, 69 Hun (N. Y.) 559, 23 N. Y. Supp. 938 (1893).

4 Tadhunter v. Buckley, 7 L. T. N. S. 273 (1862).

5 Shinn v. Cotton, 52 Ark. 90 (1889).

Self v. Dunn, 42 Ga. 528, 5 Am. Rep. 544 (1871).

7 Littlejohn v. Jones, 2 McMull (S. C.), 366, 39 Am. Dec. 132 (1842).

8 Flautt v. Lashley, 36 La. Ann. 106 (1884).

9 White v. Kennon, 83 Ga. 343, 9 S. E. 1082 (1889); Wade v. Lutcher &

M. C. Lumber Co., 74 Fed. 517 (1896); Nicolette Lumber Co. v. People's Coal Co., 26 Pa. Supr. Ct. 575 (1904).

it is a railroad, and the owners are incorporated as a business corporation. It seems to us, we might as well hold that a railroad on a sugar plantation, appurtenant to the sugar-mill, and used for carrying cane thereto, should be declared a common carrier." 10

So in a Louisiana case it was held that a corporation organized to carry freight and passengers between two sugar plantations about five miles distant from one another, and which, it was charged, was not a corporation organized for public purposes, but was a combination of individuals, whose sole object was to foster the private ends of two certain persons named, who owned jointly two sugar plantations, and who wished to transport the sugar cane grown on one of the plantations to the refinery situated on the other, was not, ex necessitate, such a corporation for public improvement as would authorize the expropriation of private property for its purposes.11 And a railroad used in transporting property within a private stock-yard is not a common carrier. 12

$109. Private spur tracks.

A strictly private spur track leading from private property to the line of a public railroad, over which the public can have no rights is not a common carrier. So in an Illinois case it appeared that a coal company had a tramway running from one portion of its coal field to another; and it desired to condemn by right of eminent domain a strip of private land in order to connect the tramway with a railroad. The court held that this could not be done. In the course of his opinion Mr. Justice Mulkey said: "It is clear that the use for which the land is

10 Pardee, Circ. J., in Wade v. Lutcher & M. C. Lumber Co., 74 Fed. 517, 521, 20 C. C. A. 515, 41 U. S. App. 45 (1896).

11 Williams v. Judge of Eighteenth Judicial Dist. Ct., 45 La. Ann. 1295, 14 So. 57 (1893).

12 Swift v. Ronan, 103 Ill. App. 475 (1902).

The coal,

proposed to be taken in this case is not a public one. the coal works and the present tramway are in the strictest sense private property, and the public generally have no more interest in them or in the operation of the works including the tramway than they have in any other strictly private business. The same would be equally true after the proposed extension of the tramway. The extending of it to the railroad would not change its .character or the obligations of the company or the public in the slightest degree. Without the consent of the owners of it, there is not a person in the State, outside of themselves, who would have the right to ride upon it on any terms that might be proposed, or to have carried upon it a single pound of freight." 13

It is immaterial whether such a spur track is to be constructed by the private owner or by the railroad to which access is desired. So a petition by a railroad company to condemn land for such a track was refused,1 the court saying: "Stripped of all the disguises thrown around the case of the petitioner, it is shown that its object is to condemn the land of the defendants for the purpose of enabling it to lay a siding, switch, branch road, or lateral work from the main track to the Wheeling Steel Works, a few hundred feet distant, for the purpose, as stated in the original petition, ' of transporting freights to and from said steel works over the petitioner's said railroad.' This clearly was for the private accommodation of both the railroad and steel works, and to make the private business of both more profitable. This was not for a public, but was for a private use, and the taking of the property, under these circumstances, would be the taking of private property for private use, which is clearly prohibited."

13 Sholl v. German Coal Co., 118 Ill. 427, 10 N. E. 199 (1886).

14 Pittsburg W. & K. R. R. v. Benwood Iron Works, 31 W. Va. 710, 8 S. E. 453, 2 L. R. A. 680 (1888).