$110. Lateral branches.

When the railroad itself builds a branch line from its road, primarily to accommodate some individual business, it is nevertheless a common carrier over the branch, and the use of the track is open to all who have occasion to use it as well as to the particular individual for whose benefit it was built.15 The question is usually raised by a petition to take land for this purpose by eminent domain. This is universally decided to be permissible, for the operation of such a branch is a public use.16 As the court said in Chicago & Northwestern Railway v. Morehouse:17 "The taking of land for a spur track to connect with a single industry is a taking for public use, if the purpose of the company is to maintain and operate such track as an integral part of its railway system, so as to serve all who may desire it, and all can demand, as a right, to be served without discrimination." 18

15 Bulter v. Tifton, T. & G. R. R., 121 Ga. 817, 49 S. E. 763 (1905); Louisville & Nashville R. R. Co. v. Pittsburgh & K. Coal Co., 23 Ky. Law Rep. 1318, 64 S. W. 969, 55 L. R. A. 601 (1901); Kellogg v. Sowerby, 87 N. Y. Supp. 412 (1904); Railroad Comm'rs v. St. Louis & S. W. Ry. (Tex.), 80 S. W. 102 (1904).

16 St. Louis, I. M. & S. Ry. v. Petty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 434 (1893); Ulmer v. Lime Rock R. R., 98 Me. 579, 57 Atl. 1001 (1904); Toledo S. & M. R. R. v. East S. & S. C. R. R., 72 Mich. 206, 40 N. W. 436 (1888); Butte A. & P. Ry. v. Montana U. Ry., 16 Mont. 504, 41 Pac. 232, 50 Am. St. Rep. 508, 31 L. R. A. 298 (1895); De Camp, v. Hibernia R. R., 47 N. J. L. 43 (1885); Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 46 Pac. 790, 60 Am. St. Rep. 818, 334 L. R. A. 368 (1896); Chicago & N. W. Ry. v. Morehouse, 112 Wis. 1, 87 N. W. 849, 88 Am. St. Rep. 918, 56 L. R. A 240 (1901).

17 Supra.

18 In a Texas case where the right to condemn land for a lateral branch running to several private places of business was refused; the reason seems to have been that the charter of the railroad limited it to a certain route, and the desired branch was off the route. Kyle v. Texas & N. O. R. R. (Tex. Civ. App.), 4 L. R. A. 275 (1889).

111. Public spur tracks.

It sometimes happens that a spur track is constructed by an individual from his premises to the railroad, but under such circumstances that the use of it is extended to the public. Such a spur track is a public track, and the operator (whether the individual or the railroad) is a common carrier as to the track.19 As the court said in the case of Chicago Dock & Canal Company v. Garrity:20 "We have not regarded the circumstances that they were laid with private funds, and that they terminated opposite or within convenient contiguity of a private manufacturing establishment, as materially affecting them and giving a private character to their use. All termini of tracks and switches are more or less beneficial to private parties, but the public character of the use of the tracks is never affected by this. If they are open to the public use indiscriminately, and under the public control to the extent that railroad tracks generally are, they are tracks for public use. 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 manufacturing establishment, yet, if there is no exclusion of an equal right of use by others, and this singleness of use is simply the result of location and convenience of access, it cannot affect the question."

§ 112. Industrial railways.

An added importance has accrued to this subject because of the recent invention of a kind of railway known as the "industrial” railway. This is a short line of railway, owned by an industrial corporation or by the owners of some business enterprise, and connecting the factory or the place of business with the main line of some railway. It may amount to no more than

19 Agee & Co. v. Louisville & N. Ry. (Ala.), 37 So. 680 (1905); Chicago D. & C. Co. v. Garrity, 115 Ill. 155, 3 N. E. 448 (1885); Phillips v. Watson, 63 Iowa, 28, 18 N. W. 659 (1884).

20 Supra.

a short spur track; but it is organized as an independent railway corporation, and the owners of the industrial enterprise are its stockholders.

If such a road, however short it may be, is actually operated independently with its own locomotives and cars, it would seem to be an independent carrier, though it is operated for the exclusive benefit of the industrial enterprise which owns it; and this is certainly the case where it accepts such general traffic along its line as may be offered to it. Of such a railway the Interstate Commerce Commission said, by Mr. Commissioner Prouty: "The Illinois Northern Railroad is a common carrier within the first section of the act to regulate commerce. It is incorporated as a railroad company under the laws of Illinois. It actually owns and operates a line of railroad. It maintains a freight station, at which it receives and delivers for the general public considerable quantities of less than carload freight. Its main business is the moving of loaded cars to and from various industries along its line, and in this capacity it serves more than two hundred plants, besides that of the International Harvester Company. Manifestly there is no reason in law why this railroad may not make joint rates, file joint tariffs and agree upon joint divisions as other railroads do. We are not called upon to decide what the situation might be if this road were a private carrier maintaining switch tracks and switching cars to and from the McCormick works exclusively. The mere fact

that this road is to-day entirely owned by the largest individual shipper over it, or that it was originally organized and built for the purpose of doing the work of that shipper, is not, in our opinion, controlling against the legality of the transaction before us.

21

21 Re Divisions of Joint Rates, 10 I. C. C. Rep. 385 (1904).

§ 113. Tap lines.

But if the "industrial railway" is simply a "tap line," not a common carrier operating a service over its rails for all that apply, it cannot pose as an independent carrier and demand the right to enter into pro rating arrangements with succeeding carriers.

The question, whether allowances from the published rate made by the roads west of the Mississippi to logging roads or tap lines," as they are called, owned or controlled by the lumber mills, constituted departures from published rates in violation of the Act to regulate commerce, was presented for decision by the Interstate Commerce Commission in the case of The Central Yellow Pine Association v. The Vicksburg, Shreveport & Pacific Railroad,22 and it was held, that the published rate must be strictly observed; that the defendants were not authorized under the law "to grant a division of the rate to the owner of a lumber mill as compensation to him for the cost of bringing his logs to the mill by steam railroad, horse railroad, wagon, or any other means of conveyance;" and that a common carrier subject to the provisions of the Act to regulate commerce can "allow a division of rates only to another common carrier which, participating in the particular traffic to which the rate is applied, is also subject to those provisions." 23

114. Distinction between public lateral branch and private spur.

The distinction between the public branch and the private spur appears to lie merely in the facts as to the use which can be made of the road. If it runs for a considerable distance, so that at a future time demands not now in existence may come into being and the road may be of use to a number of persons,

22 10 I. C. C. Rep. 193 (1904).

23 Compare Re Transportation of Salt, 10 I. C. C. Rep. 1 (1904) (holding the tap line not a common carrier where it had no equipment).

it is a public road. If, however, the premises of the individual benefited either directly adjoin the railroad or are separated only by a few feet, so that the intervening land can be accommodated from the main track, then the use is a private one; and that was the fact in the cases previously examined of private spurs. The true doctrine is admirably stated by the court in the case of Butte, Anaconda & Pacific Railway v. Montana Union Railway :24 "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 lateral railroad 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

24 16 Mont. 504, 41 Pac. 232, 50 Am. St. Rep. 508, 31 L. R. A. 298 (1895); See Avenger v. So. Carolina R. R., 29 S. C. 265 (1888).