
    STEPP et al. v. WICHITA FALLS & N. W. RY. CO.
    
      No. 2106.
    Opinion Filed May 9, 1911.
    Rehearing Denied June 8, 1911.
    (116 Pac. 1012.)
    RAILROADS — Flag Stations. A petition was filed for the establishment and maintenance of a depot and agent at W. This was denied by the Commission. An appeal was prosecuted therefrom. Held, that the same should be granted to the extent of requiring the erection and maintenance of a spur or switch at which one train each way each day should be stopped on flag for the embarking and disembarking of passengers and the delivering of prepaid freight and .receiving of shipments, where the freight was permitted to be paid at the point of destination.
    (Syllabus by the Court.)
    Hayes and Kane, JJ., dissenting. ,
    
      Appeal from Order of Corporation Commission.
    
    Proceedings by A. V. Stepp and others against the Wichita Falls & Northwestern Railway Company. Judgment for defendant, and petitioners appeal.
    Reversed.
    
      J. A. Powers, for appellants.
    
      Chas. C. Huff, for appellee.
   WILLIAMS, J.

The appellants petitioned the Corporation Commission to require the appellee to install and maintain a depot or station at the town of Willow on its line. The petition, as to all relief, was denied. The appellee’s line of railway is of recent construction, running within a half mile of the old town of Willow, which is located in a thickly settled agricultural community, and which has been established since 1899: It has a post office, with two rural routes diverging therefrom, a telephone exchange, with about 85 subscribers, seven residences, two general stores, one hardware store, one butcher shop, one coal yard, one lumber yard, one real estate office, and one cotton gin, ginning about 1,400 bales of cotton each season. The adjacent stations, which were located at the time of the construction of defendant’s line of railroad, with the approval of the Corporation Commission, are Brinkman, or Kell, about 3J4 miles southwest of Willow, and Moravia, about 5 miles north of Willow. Brinkman and Moravia are located in communities principally inhabited by Greeks and Syrians and persons of foreign birth. The population of the community of Willow consists of native-born Americans.

The proof shows that the American population in the surrounding country trades at Willow, and the foreign population at the other two points. After the construction of the road, those parties living in the old town of Willow moved to the railroad at the nearest adjacent point, which was about a half mile distant. The appellee thereupon fenced its right of way across the streets and alleys and public highways. The town sites of Brink-man and Moravia appear to be owned by appellee’s officers, or persons directly connected with it. Railroads, in being constructed, should establish depots, or prepay or flag stations, to meet the reasonable convenience and demands of the existing conditions, and should not be permitted to unreasonably destroy existing communities, that others may be built up. It is not clear that the appellants are entitled to have a regular station or depot. That would call for an expense or outlay for the construction of a depot and the maintenance of an agent on the part of the ap-pellee. However, under the facts in this record, we believe that the appellee should be required to erect and maintain a spur or switch, at which one train each way each day should be stopped on flag, for the putting off and taking on of passengers, and also the delivering of prepaid freight, and the receiving of freight where the freight charges were to be paid at the point of destination. In Atchison, Topeka & S. F. Ry. Co. v. State et al., 28 Okla. 476, 114 Pac. 721, the appellant was required by an order of the commission to stop on flag at Belva, a town of about 30 inhabitants, trains Nos. 113 and 114. There was the further contention of the difficulty in stopping trains on account of the grade, but in a unanimous opinion of this court said order was sustained. See, also, Atchison, T. & S. F. Ry. Co. v. State et al., 23 Okla. 510, 101 Pac. 262; St. Louis & Southwestern Ry. Co. v. State (Ark.) 134 S. W. 970; Atchison, T. & S. F. Ry. Co. v. State et al., 23 Okla. 210, 100 Pac. 11.

The order of the Corporation Commission is accordingly reversed, with instructions to proceed in accordance with this opinion.

TURNER, C. J., and DUNN, J., concur; HATES and KANE, JJ.. dissent.  