
    DWYER et al, Appellants, v. CHICAGO & N. W. RY. CO. Respondent. (Two cases.)
    (166 N. W. 237.)
    (File No. 4058.
    Opinion filed February 5, 1918.
    Rehearing granted March 26, 1918.)
    " 1. Railroads — Private Farm Crossings — Applications to Railroad Board for Guards, Wing Fences — Guards, Board’s Order For, Necessity — Statute.
    Under Civ. Code, Sec. 541, providing tbat wben a person owns land on both sides of a railroad, it shall, wben so required make and keep in repair a cause-way or other safe and adequate means of crossing same, as amended by Laws 1913, Ch. 293, further providing tbat upon request of land owner, it shall maintain safe and adequate cattle guards over its right of way and tracks, when ordered to do so by railway commissioners, held, tbat cattle guards are required only upon such request, and wben ordered by said board.
    2. Same — Private Farm Crossings — Cattle Guards, Wing Fences— Protection By Guards and Fences — Construction of Guards, Whether Mandatory on Owner’s Demand — Commissioner’s Decision, Failure to Mate Findings re Kind and Safety of Guards — Constitutional Law — Error, re Due Process, Equal Protection.
    The decision of railway commissioners, upon application of a farm owner of land on both sides of a railroad, for construction of cattle guards and wing fences at a private crossing, that the board is required, on request of land owner, regardless of conditions existing at or connected with use of the crossing', to issue an order for construction thereof, is erroneous; Civ. Code, Sec. 541, as amended by Laws 1913, Cb. 295, providing that, upon such request, the railroad company shall construct and maintain safe and adequate cattle guards over its tracks, when requested by owner and when ordered to do so by railway commissioners, not being mandatory; and the owner’s demand must be considered in view of its reasonableness under the conditions existing at, and the use to be made of the particular crossing at time such request is made; the amendatory provisions merely extending -the duty to provide safe and adequate means of crossing tracks, by putting in guards where existing conditions and use are such as to make them reasonably necessary. Held, further, that the board erred in failing to make findings under issues as to whether the kind of cattle guards ordered to be constructed would materially endanger safety of traveling public and of persons operating trains, and as to whether cattle guards and wing fences at these crossings were requqired to make them ■safe and adequate, in view of the reasonable use intended to be made of same by plaintiff farm owner in necessary traveling and farm operations; the statute only requiring crossings, whether with or without cattle guards, which are safe and adequate; the matter of convenience alone not being controlling; and in absence of such findings, trial court on appeal from the decision of the board, erred in holding that enforcement of the order for cattle guards and wing fences would constitute taking defendant’s property without due process of law, and would deny defendant equal protection of the law.
    '3. Same — Private Farm Grossings — Statutes Conferring Right to, Whether Based on Police Powei’ — Power, Whether Embracing Private Bights
    Statutes conferring upon land owner right to private farm crossing over railroad are not grounded in police powers of the state; such power extending to matters affecting public health and safety or convenience, and comfort or morals of the community, not to matters affecting only private convenience or individual rights. .The public has no interest and is not affected by contracts or statutes providing for such private crossings, except in so far as the mode of construction thereof may safeguard or endanger public travel or traffic on railroad trains; hence statutes requiring such construction solely for property owners’ convenience may not be viewed as an exercise of police power, while those requiring and controlling construction of depot buildings, platforms, elevators, warehouses, switches, side tracks, fences along right of way, cattle guards at public crossings, etc., which are reasonably necessary for public convenience and safety, constitute a proper exercise of such power.
    4. Same — Private Farm Crossings, Statutes Conferring Bight to— Vested Bights — Police Power, Interference of With Owner’s Rights — Whether Statute Unconstitutional ? — Test of Constitutionality.
    'Where the only purpose of a statute providing for construction and maintenance of private farm crossings over a railroad right of way, is to serve convenience of private land owner, different principles than those applying to public convenience and ■ safety, such as construction of depot buildings, cattle guards at public crossings, etc., are involved; in the former case questions of vested property rights may arise, interference with which is limited by constitutional provisions. A statute constituting an .exercise of police power reasonable in itself, is not deemed an unconstitutional interference with vested rights, merely because its execution causes expense and inconvenience to property owners; police regulations being tested, as to constitutionality, by considering whether, in view of all facts, the taking of private property is merely arbitrary and unreasonable, or is justified by public necessity which the carrier could lawfully he compelled to meet.
    5." Same — Private Farm Crossings — Public Interests, Whether Involved — Basis of Bight to Private Crossing, Statutory, Contractual — Bulo of Construction.
    In the matter of construction of farm crossings for private convenience alone, no public interests are involved; and the -right to demand private farm crossings lays in statutory provisions, or in private contract; such statutes being grounded in legislation controlling all corporations or persons seeking to exercise quasi public functions, such as business of common carrier, and the acceptance, actual or implied, of statutory conditions regulating reasonable duties and obligations not only to the public, but for necessary convenience of private persons directly affected thereby. Such duties affecting personal or private property rights alone are in nature mors nearly contractual, hut may be enlarged by express or implied reservations of the right in the statute or charter, or by agreement; hut such statutes are not to be construed, nor. will contract rights he permitted to operate, so as to destroy or endanger public safety or convenience. ,
    6. ■ Same — Regulations for Fencing and Crossings, How Far Police Regulations? — Public Safety — P o’ice Power, Carrier’s Duty, When Founded In? — Property, Noil-injurious Use of, Rule.
    The proposition that .regulations regarding fencing railroad tracks and construction of farm crossings for use of adjoining farm owners are strictly police regulations, is correct only in a limited sense. In so far as such regulations provide for and are designed for the -public safety and convenience, they are within the police power of the state; but when they are exclusively for convenience of private persons, the use of whose property is affected by construction of the railroad, the duty of the carrier is not founded in police power, but rests upon the principle of law compelling observance of the rule that the owner of property must so use it .as not to unnecessarily injure it, and the principle that property which has become “affected with a public interest * * * ceases to be juris privati only;” the reason being that “the community at large” acquires such a qualified interest as will subject it to legislative control for the common welfare.
    7. Same — Farm Crossings — Statutes Compelling Construction of, When Unconstitutional? — Quasi Public Instrumentality, Statutory Control of — Rule—Use of Railroad Property, Effect— Statutory Conditions.
    A law which might attempt to compel the owner of private property, such as a railroad, to expend it in furnishing conveniences for another private person, would be clearly unconstitutional; but when such owner seeks to use his property as an instrumentality in performance of quasi public functions, which are subject to governmental control, it becomes subject to such requirements as the state imposes, and to others of similar character which may thereafter be imposed, not inconsistent with such use, and not arbitrary nor unnecessary to accomplishment of theoriginal purpose; and usé amounts to a binding acceptance of such reasonable conditions and ' requirements.
    8. Same — Private Farm Crossings — “Cattle Guards,” .as Safe Means. of Crossing Track — Private Crossing, Compared to Public— “Safe” Private Crossing, Use, As Affecting.
    The term “cattle guards,” is not defined by statute; but the object to be -accomplished is- clearly stated, to wit; a'safe and adequate means of crossing the. track. , The use of private crossings, while limited in extent to needs of individual land owner, may be the same in character as at a public crossing. To make a private crossing safe, the same construction might be necessary as at a public crossing, though adequate and .reasonable safety both, depend, on use to be made of it by land owner.
    9. Same — Private Farm Grossings, Amendatory Statute Requiring Guards, Wing Fences, Whether Unconstitutional.
    Matters which arise from changed local conditions are within the purview of the object intended to be accomplished by an original statute providing for construction and maintenance of private farm crossings, etc.; and a subsequent amendment requiring cattle guards or wing fences at farm crossings at expense of carrier, where existing conditions require them, is not unconstitutional.
    Appeal from Circuit Court, Beadle County. Hon. Alva F. Taylor, Judge.
    Two proceedings. by John Dwyer and C. Dwyer, against the Chicago & .Northwestern Railway Company commenced before the Board of Railroad Commissioners,! for construction and maintenance by the defendant Railway Company, of' cattle guards and wing fences over its .right of way on Appellants’ farms. The, board having ordered such guards and wing fences to be constructed.,upon appeal therefrom to the circuit court, findings and judgments were entered therein vacating -said- order. From said judgment and from an order denying a new trial, the petitioners and the Board of Railwajr Commissioners appeal.
    Judgment and order reversed, and cause remanded with -directions to remand same to the Board of Railway Commissioners, for new trial.
    
      P. W. Dougherty, and Oliver B. Sweet, Assistant Attorney General, for Appeliaimts.
    
      A. K. Gardner, for Respondent.
    (2) Under' point two of the opinion, Appellants submitted tHalb: The Board's order ¡dlo'eisl not require ithe taking of property for private purposes; and cited: State v. Mason City and Ft. Dodge Ry. Co. (la.), 52 N. W. 490. That these .proceedings Constitute due process of law: citing: State ex reí. O. R. & N.. Co. v. Fairchild, 224 U. S. 510; 32 Sup. Ct. 535; 56 L. Ed. 863; 4 R. C. L. page 625, Sec. 97; Turner Creamery Co. v. C. M. & St. P. Ry Co., 154 N. W. Rep. 81.9.
    Respondent cited: Great Northern Railway Co. v. Minn. Comm. 238 U. S. 340; Washington ex rel v. Fairchild, 224 U. S. 510; C. M. & St. P. R. C:o. v. Wisconsin, 238 U. S. 491; Mc-Inwis v. Now Orleans R. Co. (Mis-s.) 68 So-. 481.
    (3) To point three of the opinion, Appellants cited.: Const. Art. 6, Sec. 13; 8 Cyc. 874, Atlantic, etc. R. R. Co. vs. State 89 A. S. R. 233 236. Pound' on Public Utilities, Sec. 554; Pacific Telephone & Telegraph Co. v-s. Wright in Dickinson Hotel Co., 214 Fed. 669: Notes to case of Pac. Tel & Tel. Co. v. Eshleman, 50 L. R. A. (N. S.) 656; Wisconsin M. & P. R. Co. v. Jacobsen,. 179 U. S. 288; IV. .Cook on Corporations, Section 900; Note IV., Cook on Corporations 3312.
    (4) To point four of the opinion, Respondent cited: Missouri Pac. R. Co. v. Nebraska, 217 U. S. 196.
    (7) To point seven of the opinion, Respondent cited: People v. Detroit R. Co. (Mich.) 44 N. W. 934.
    (8) Under point eight of the opinion, Appellants submitted that: Inasmuch as section 541, Civ. Code, does not mention wing fences, the question arises, as to whether the board was justified in including in its order the requirement that wing fences be constructed. In this respect the provision of the statute is that the causeway or crossing must be safe and adequate^ and that the cattle guards over the right of way must likewise be safe and adequate; and cited: Missouri Pacific Company v. Manson, 2 Pad Rep. 800.
    Respondent cited: Aistrope v. Tabor (la), 75 N. W. 334; Mclnnis v. New Orleans.R. Co. (Miss.) 68 So. 481.
   SMITH, J.

The Board of Railroad Commissioners at the request of appellants, owners of certain farm lands lying on both •sides of respondent’s railway tracks in Turner county, due proceedings being had, entered its, order requiring respondent to put in cattle guards, and also wing fences extending from the boundary line fence along its right of way to the cattle guards in' the track. Upon appeal to the circuit court, findings of fact were made by the trial court upon which judgment was entered vacating the. Order of the commission. Property owners and the Board of Railroad Commissioners appeal.

It is conceded that ever since the construction of the railway, about 1883, the railway company has put in and maintained private farm crossings and has constructed and maintained proper gates at -such crossings, for the use of the landowners, and has done all grading necessary to make proper approaches to said crossings. It is conceded that the railway company had fully com.plied with the requirements of section 541, Civil Code, as it stood prior to its amendment by chapter 295, Laws 1913. The original section was as follows:

“When any person owns land on 'both side's of any railroad, the corporation owning such railroad, shall, .when required so to do, make and keep in good repair one causeway or other safe and adequate means of crossing the same.”

This section in identical language was originally enacted as section 106 of chapter 15, Territorial Laws of 1867-68, was reenacted as section 484 of the civil code of 1877, and again as section 541, Civil Code of 1903, and was in effect at and long prior to the time respondent became incorporated under the laws of this jurisdiction. As amended the section provides:

“When any person owns land on both sides of any railroad, the corporation owning such railroad shall, when requested so to do, make and keep in good repair one causeway or 'other safe and adequate means of crossing- the same, and shall, upon request of the owner of said land, construct and maintain safe and adequate cattle guards over its right of way and tracks, when ordered to- do so by the Board of Railroad Commissioners, and thereafter it shall be the duty of the owner of the land to. keep the gates for said crossing closed, except when in actual use.”

The amendment refers to two things not specifically mentioned in the -original section, viz. cattle guards, and gates, as constituting a “crossing” Of the track. Cattle guards are required only upon, request, and when oirdtered by the Board lotf Railroad Commissioners.

Formal pleadings were filed before the Board of Railroad Commissioners, and the matter was heard upon issues thus raised. The complaint in substance alleges a demand, and refusal of defendant to construct adequate mean© of crossing its railroad track and right of way, including cattle guards and wing fences at such crossing's, and prays ah order by the Board of Railroad Commissioners requiring the defendant to oonstruct crossing's and cattle guards as provided 'by chapter 295, Laws of the State of South Dakota for the year 1913.

The answer of the defendant by a general denial raised certain issues which are nlot material here, and by way of further answer alleged that to construct and maintain the character of crossings asked by plaintiff would be exceedingly dangerous and would be a constant menace, -imperilling the lives of defendant’s employes in charge of its trains, and the lives of passengers carried over its said line; that there is no necessity for the construction and maintenance of such crossings as complainant demands; and that the required construction and maintenance -thereof would be unconstitutional as' denying the defendant equal protection of the law in violation of the state and federal Constitutions.

At the hearing plaintiff offered the r testimony of John Dwyer, C. Dwyer, and one Benson. The defendant offered, the testimony of some 12 witnesses. There is practically no dispute in the evidence upon any matters which are material -here.

The decision 'of the Board of 'Railroad Commissioners recites that:

“The testimony of the defendant is practically all directed against the dangerous conditions growing out of farm crossings protected by cattle guards and wing fences, particularly as to where such crossings are to be constructed and maintained as open crossings; there being some testimony tending to- show that the dang-er is somewhat increased by the construction of cattle guards and -wing fences, inasmuch as any such construction might under certain -conditons create a shadow or blind, thereby obstructing the view and increasing the danger.”

The commissioners held that the making of the order pi^ed for wo-ukl be a proner exercise of the police power o-f ■the -state, and that, it h-as- authority to- impose -additional duties and requirements upon a ^ carrier, either’for the protection and -convenience of the general public, o-r for the protection- and convenience of -property owners. After quoting' section 541 of the Civil- Code ¡as amended, the commission! says: equip its farm crossings with fences and cattle guards under chapter 295 of the Session Laws of 1913.”

“It is. clear from a reading -of the above-qjuo-ted statute that ■the intention of the Legislature was to compel a railroad to construct and maintain a farm, crossing with suitable and adequate cattle guards when requested to -da so by persons owning land on both sides of its track; and in the enforcement of the statute, this commission is justified in issuing an .order requiring the -construction and maintenance of such facilities as -demanded, and the order is -predicated upon the obligation of the -defendant to

We understand this to mean that the statute as construed requires the construction of' such crossings as are described in 'the order at every farm crossing in the state upon demand of the landowners, regardless of 'Conditions existing at or connected, with the use of the particular crossing, and that the board is required to issue such order in all cases when íequest therefor has been made. We -do not think the statute is thus mandatory. We are of the view that every such demand must be considered in view Of its reasonableness under the conditions existing at and the uses to be made of the particular Grossing at 'the time suidh request is made. Certainly it was not intended to require the construction of such crossings regardless of their use, or of their necessity for the convenience of the landowner. The mere fact that an order is required for cattle guards implies a hearing and determination as to the fprqpriety of islulch ordleir. It is also plain that upon au'ch 'hearing the kind of cattle guards which will render a crossing “safe and adequate” must be determined.

Statutes which confer upon landowners the right to private farm crossings are not grounded in the police powers of the state. The police power extends to matters which affect the .public health and safety or the convenience, comfort, or morals of the community. It does not extend to matters which affect only private convenience or individual rights. The public has no interest in and is not .affected by contracts or statutes which .provide for private farm crossings, except in so far as the mode of construction thereof may safeguard or endanger public travel or traffic on railroad trains. It follows that statutes which require construction of farm crossing's solely for the convenience of property owners may not be viewed as an exercise of police power, while those which require and control the construction of depot buildings, .platforms, elevators, warehouses, switches sidetracks, fences along' right of way, cattle guards at public crossing's, etc., which are reasonably necessary for public convenience and safety, constitute 'a proper exercise of such power. Where the only purpose of such a statute is to serve the convenience of the private landowner, different principles •would be involved. In such case questions of vested property rights may arise, interference with which is limited by constitutional provisions.

A statute which constitutes, an exercise of police power reasonable in itself is not deemed an unconstitutional interference with vested rights, merely because its execution causes more, •or- less expense and inconvenience to the property owner. Police regulations are tested as to their constitutionality by considering whether, in view of all the facts, the taking of private property is merely arbitrary and unreasonable, or is justified by public necessities which the carrier could' lawfully be compelled to meet. Wash. ex. rel. O. R. & N. Co. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535, 56 L. Ed 863.

In the matter of constructing farm crossings for private convenience alone,' no public interests are involved. It is not contended or even suggested by appellants that the putting in of cattle guards and wing fences is necessary to. safeguard persons or property transported on defendant’s trains. On the contrary, appellants’ entire evidence is directed to show farm conditions which require such crossings for convenience in moving stock and farm produce. The right to demand private farm crossings rests in statutory provisions or in private contract. Railway Co. v. Odeneal, 73 Miss. 34, 19 South 202. Such 'statutes are grounded in the legislative control over corporations or persons seeking- to exercise quasi public functions, such as the business of common carriers, and the acceptance, actual or implied, of statutory conditions regulating reasonable duties and obligations not only to the public, hut for the necessary convenience of private persons directly affected thereby. Such duties affecting rights of persons or private property alone are in their nature more nearly contractual, hut may be enlarged and extended by express or implied reservation of the right in the statute or charter, or by agreement of the parties. State v. M. & Ft. D. Ry. Co., 85 Iowa, 516, 52 N. W. 490; I. C. R. Co. v. Bloomington, 76 Ill. 447. But such statutes are not to be construed, nor will contract, rights be permitted to operate, so as to destroy or endanger the public safety or convenience. In Chalcraft v. L., E. & St. L. R. R. Co., 113 Ill. 86, that court says:

“In giving construction to the statute, it is quite evident it could not have been intended the interests of the landowner or occupant are alone to be consulted, for the question also affects the interests of the railroad company and the public. * * * Moreover, the rule is general that where a conflict arises between a mere private convenience on the one side and the public welfare on the other, and one much give way, the former must yield to the latter. The public welfare demands as high 'a degree of safety in the transportation of persons and property by railroad as ‘is reasonably latbainable in view of the character and exigencies of that mode of transportation, and anything, therefore, which tends to directly and materially imperil the safety of such transportation, is so far inconsistent with the public welfare ,and ought not to be allowed for the mere salce of a private convenience.”

In Shipp v. Belt Ry. Co., 133 Term. 238, 180 S. W. 318, after quoting from the Chialcraft Case, -the court says:

“We agree with the principles laid down by that court. No crossing will he required or allowed at a point which would tend to dimelctly and materially ¡imperil the safety of transportation., for where the rights of the individual come in conflict with those of the public, the rights of the individual must yield.”

The statement in Ill. Cent. Ry. Co. v. Willenborg, 117 Ill. 203, 7 N. E. 698, 57 Am. Rep. 862, that:

“The regulations in regard to fencing railroad tracks, and the .construction of farm crossings for the use of adjoining landowners, are police regulations in the strict sense of those teims,” etc. — is-, we think, correct only in a limited sense. Tn so far as such regulations provide and are designed for the public safety and -convenience, they are undoubtedly within the police power of the state. But when they are exclusively for the convenience of private -persons, the use of whose property is affected by the construction of the railroad, the duty of the carrier is not founded in the police power, but rests upon the principle of law which compels observance of the rule that the owner of property must so use i-t as n-ot to' unnecessarily injure -another, and the principle that -property which has -become “affected with a .public interest * * * ceased to be juris priva-ta only,” for the reason -that “the community at large acquires such a quailfied interest as will subject it to legislative control for the- common welfare.”

A law which might attempt to compel the owner of private property to expend it in furnishing conveniences for another private person ■ would be clearly unconstitutional, but when such owner seeks to use his property as an instrumentality in the performance of- quasi public functions, which áre subject to governmental control, it becomes subject to1 such requirements as the state imposes, and to others of- similar character which may thereafter be imposed, not inconsistent with such use, and not arbitrary nor unnecessary to the accomplishment of the original purpose, and use amounts to a binding acceptance of such reasonable conditions and requirements.

The original section of the Civil Code in substance required “a safe and adequate means” of crossing the track. The amended section does not change this, but adds that the ■railway company shall “construct and maintain safe and adequate cattle guards over and across the right of way,” when ordered by the Board of Railway Commissioners. This addition to the original statute is merely an extension of the duty to provide a safe and adequate means of crossing the' track, by putting in cattle guards where existing conditions and use are such as to make them reasonably necessary. The term “cattle guards” is not defined by the statute, but the object to be accomplished .is clearly stated, .to wit, a safe and adequate means of crossing the track. The use of private' crossing, while limited in extent to the needs of the individual landowner, may be the same in character as at a public crossing.' To make a. private crossing safe the same construction might be necessary as ait a public crossing, though adequacy and reasonable safety both depend upon the use to be made of it by the landowner. Matters which arise from changed local conditions are within the purview of the abject intended to be accomplished by the original statute, and a subsequent statutory enactment by way of amendment requiring cattle guards or wing fences at 'farm crossings at the expense of the carrier, where existing conditions require, them, is not unconstitutional. We are of the. view that the Board of Railroad .Commissioners were in error in holding that the right of plaintiffs to cattle guards and wing fences became absolute u-poix demand, and in failing to make findings-upon the issues raised) by the pleadings as .to whether the kind; of cattle guards ordered to be constructed would materially endanger the safety of the traveling public and of persons operating trains, and as to- whether cattle guards and wing fences-at these crossings were required, to make them safe and adequate, in view of the reasonable use intended to be made of the-same by .plaintiff in necessary travelling* and farming* operations. The statute only requires crossings, whether with or without cattle guards, which are safe and adequate. The matter of convenience alone is not controlling.

The cause was plainly considered and determined hy both, the trial court and the Railroad Commission upon erroneous-theories of the law. These issues of fact should have been considered and determined. And in the absence of such findings,, the trial court erred in holding that the enforcement of the order would constitute the taking of defendant’s property without due process of law, and would deny the defendant the equal' protection of the law.

The judgment* and order denying a new trial are reversed., and the cause is remanded to the trial court, with directions foreman d the same to the Board of Railroad Commissioners for a new trial.  