
    Gratz v. The Lake Erie & Western Railroad Co.
    
      Farm crossings of railroads — Must be constructed' by railroad, when —Sections 3327 and 3328, Revised Statutes — Right of farm owner to construct same.
    
    Although Sections 3327 and 3328, Revised Statutes, requiring a railroad company to construct a farm crossing for the convenience of an owner whose lands lie on both si'des of its road, apply only to cases where lands are in one ownership at the time of the construction of the road,'any owner of land lying upon both sides of the road may construct such crossing at his own expense, it being suitably located and necessary for the reasonably convenient use of his lands, its construction and maintenance to . be without interfering with the company’s paramount right as to the movement of its trains.
    (No. 9823
    Decided April 9, 1907.)
    Error to the Circuit Court of .Allen County.
    
      In the court of common pleas Gratz sought to enjoin the company from interfering with his construction of a farm crossing over its road, his land lying on both sides thereof. In the court of common pleas final judgment was rendered on the pleadings. In his petition Gratz alleged that he is the owner of more than fifteen acres of land which he definitely describes, portions' thereof lying upon either side of the company’s track; that he is using said land for the purposes of agriculture; that without a private crossing over the company’s track he could not pass from his land upon one side thereof to that upon the other without the great inconvenience of going more than a mile across other lands and by public roads; that on the first day of April, 1903, he served a notice on the company requiring it to construct a private crossing within four months from that date in accordance with the requirements of Section 3327 of the Revised Statutes, and that the company having failed to comply with that notice on the sixth day of August, 1903, he served upon it a further notice as required by Section 3328 of the Revised Statutes that on or after August 25, 1903, he would enter upon its right of way and construct said crossing at its cost. He further alleged that the company threatened to and unless restrained would prevent his constructing said crossing. He prayed for a temporary injunction restraining the company from interfering with such construction and that upon the final hearing the injunction be made perpetual. Upon the filing of the petition a temporary injunction, was allowed by the common pleas court.'
    The company answered admitting the service of the notices upon it by Gratz and alleging the following facts which the reply of Gratz admits: That its road had been constructed and in operation for more than thirty years; that the lands of Gratz were not at the time of the construction of the railroad in the same ownership, he not having acquired the tract on one side of the railroad until the 10th of August, 1902, and that after the allowance of the temporary injunction he had completed the construction of the crossing. It prayed for a mandatory injunction requiring Gratz to remove the crossing and restore the company’s property to its former condition. On the hearing upon the pleadings the common pleas court dismissed the petition and allowed- the mandatory injunction prayed for by the company and rendered judgment in its favor for the costs of the suit. That judgment was affirmed by the circuit court.
    
      Messrs. Welty & Downing, for plaintiff in error.
    
      Mr. John B. Cochrun; Messrs. 'Richie & Richie and Mr. W. H. Leete, for defendant in error.
   Shauck, C. J.

The notices which the plaintiff gave to the defendant indicate that in his view he might require a farm crossing to be constructed by the railroad company, or at its. expense, although he acquired his land upon one side of the track after the construction of the railroad. That such right is conferred upon him by Sections 3327 and 3328 of the Revised Statutes is the view now urged in the brief of his counsel. To the contrary, it is urged that the burden ds imposed upon the company in those cases only in which by the construction of the railroad it divides a tract of land which is then in the same ownership. And much reason for that view is found in the language of the two sections referred to and of Section 3329 which limits their operation. This view of the statute was taken by the courts below.

While we do not question the correctness of their conclusion with respect to the conditions of the company’s liability for the expense of constructing the crossing, we think it clear that the conclusion affords no support to the judgments which they rendered. The notices given by the plaintiff are suggestive of an intention to resort, after the completion of the crossing by himself, to the right of action given by the concluding clause of Section 3328 to recover the cost thereof “in an action against such company.” But such action had not been brought by him. The bringing of such actiqn could not be effectively anticipated by a suit for a mandatory injunction which lies to compel a party to restore a status which he has wrongfully changed. But the plaintiff had done no more than to exercise his right as owner of the land subject to the paramount rights of the company to construct, at his own expense, a farm crossing suitably located and necessary to the reasonably convenient use of his lands upon both sides of the track, the crossing to be constructed and maintained without interfering with the operation of trains, that being the paramount right of the company. That he has such right is neither asserted nor denied by counsel. The right is entirely consistent with the purposes for which the company acquired its right of way and its existence appears to be generally recognized. Housatonic R. R. Co. v. Waterbury, 23 Conn., 101; Kan- sets Central Ry. Co. v. Allen, 22 Kan.; 285; Atchison & Neb. R. R. Co. v. Gough, 29 Kan., 94; Chicago, Kan. & Western R. R. Co. v. Cos'per, 42 Kan., 561. There being no action to recover from the company the expense of the construction of the crossing by the plaintiff, the controversy between the parties has been at a range too long to be effective.

Judgments reversed.

Summers, Spear and Davis, JJ., concur.

Price, J., dissents.  