
    The Cincinnati Crushed Stone & Gravel Company v. The Public Utilities Commission of Ohio et al.
    
      Railroads — Switch connection ordered by utilities commission — On application of shipper—Commission not authorized to require applicant—To reimburse another shipper, when.
    
    Where application is made by a shipper to the public utilities commission for a switch connection with a railroad siding, which siding is on the right of way of, is owned by and under the absolute control of the railway company, the commission, in ordering a switch connection with such ’ siding and in fixing the terms and conditions upon which such connection shall be made, has no authority to require such applicant to reimburse another shipper on account of expenses voluntarily incurred by the latter incident to a change of location of the siding and to re-arrangement of the tracks of the railway company.
    (No. 15369
    Decided May 15, 1917.)
    Error to the Public Utilities Commission.
    The Queen City Crushed Stone & Sand Company, one of the defendants in error, is a corporation engaged in the business of crushing stone and dealing in gravel and sand, and for that purpose acquired and owns a tract of land in Clermont county, Ohio, along the line of the railroad of The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, one of the defendants in error herein. The line of railroad in that locality runs in a northerly and southerly direction. On June 3, 1916, the Queen City Company applied to the Public Utilities Commission of Ohio for a switch connection with the siding located immediately west of the west-bound main track of the railroad. The Railway Company filed an answer to this application in which it represented that the track or siding with which a switch connection was requested had been located in its present position at the cost and expense of The Cincinnati Crushed Stone & Gravel Company, the plaintiff in error herein, which company denied the right of the Railway Company to permit the connection to be made as prayed for in the complaint, and had notified the Railway Company that it was prepared to take all necessary legal steps to defend its rights and vested interests in said track or siding. The Railway Company asked that the Cincinnati Company be made a party defendant, and averred that a complete determination of the matters and things involved in the controversy could not be had without the presence of the Cincinnati Company as a party therein. That company was made a party defendant, its appearance was entered, and it was represented by counsel at the hearing before the Commission.
    Immediately north of the property of the Queen City Company is a tract of land owned by the Cincinnati Company, on which is located and is in operation its plant for crushing stone and washing gravel. The latter company owns also a tract of land lying immediately south of the property owned by the Queen City Company. The tract of land now owned by the Queen City Company was formerly owned by one Mary A. Walton and her children. Prior to January 1, 1915, the Cincinnati Company had a switch or spur track from its plant extending southeasterly through the Walton tract to its own tract of land on the south, where there were a number of short tracks or switches, used by the railroad for yard purposes, from which there was a single connection with the main westbound track of the railroad. The right of the Cincinnati Company to use the Walton tract terminated in 1915 and that company was required to vacate those premises and to remove its switch tracks therefrom. That company then being without switching facilities made application to the Railway Company for a switch connection with its plant. At that time the west-bound main track of the railroad, running in a southerly direction, was immediately east of the properties of the Cincinnati Company and the Walton tract. Between the west-bound and the east-bound main tracks was a siding more than one-half mile in length and connecting the west-bound with the east-bound main track. For some reason, what is known as a trailing-point switch connection could not be made with the west-bound main track. A facing-point switch connection could have been made, but such connection is “a very objectionable feature from the standpoint of railroading.” The Railway Company also objected to a switch track crossing its west-bound main track to the siding between the two main tracks. In March, 1915, under an agreement entered into by the Cincinnati Company and the Railway Company, the siding which had been constructed between the main tracks was taken out from its then location by the latter company and placed on its right of way along the west side of the west:bound main track and next to the properties of the Cincinnati Company and the Walton tract. A switch or spur-track connection was then made with the plant of the Cincinnati Company direct with this siding. This siding is approximately 2,700 feet in length and connected with the west-bound main track at a point near the north line of the north tract of the Cincinnati Company, and runs in a southerly direction, connecting with the west-bound main track at a point opposite the other tract of the Cincinnati Company, lying south of the Walton tract. In making this change in the location of the siding it was necessary to reconstruct the yard on the south tract, to move the west-bound main track a short distance to the east, to construct a crossover between the two main tracks, and to lay and to use about 300 feet of entirely new rail and track. The total cost of this work, amounting to $5,500, was paid for by the Cincinnati Company.
    In 1916 the Walton tract was purchased by the Queen City Company, and in March of that year, when it was ready to develop the property and construct its plant, it made a request of the Railway Company for a switch connection. On May 18, 1916, the Cincinnati Company addressed a letter to the Railway Company, a copy of which was sent to the Queen City Company. In that letter the Cincinnati Company denied the right of any person to use the siding, or the right of the Railway Company to grant any such use or permit a connection therewith. It insisted that it owned exclusively the siding, under its arrangement with the Railway Company; that it had built and paid for it, and that it had acquired an indefeasible right for railroad purposes in the siding and so much of the right of way as it is built upon. It insisted further that even if the Railway Company were disposed to grant to the Queen City Company a connection with this siding, the Railway Company would have no power to do so without refunding to it, the Cincinnati Company, the amount of money it had expended directly and incidentally in the construction of this, siding and its dependent spur tracks, approximating $19,000. ■ The Cincinnati Company further insisted that if the Railway Company should be unwilling to make this refunder, it would “have no right, and it would be unlawful, and inequitable, and a case of rebating and discriminating between shippers if it permitted such connection without requiring The Queen City Stone and Gravel Company to pay full one-half share of the money so expended.” It seems that upon the hearing of this matter before the Commission the contentions of the Cincinnati Company as expressed in its letter were abandoned, and the only claim made was that before a connection be ordered there should be paid to it one-half of the $5,500 expended by it in placing the siding at its present location.
    The matter was heard by the Commission upon the pleadings and the evidence and the arguments of counsel. It made an order that the Railway Company locate and construct a switch from the premises of the Queen City Company to its line of railway and connect the switch therewith so as to permit the passage of cars with facility, the Queen City Company to deposit with the Railway Company, upon such terms and conditions as govern similar applications, a sum sufficient to pay the cost of installing and connecting the switch. The Commission refused to order the Queen City Company to pay the Cincinnati Company one-half of the $5,500 or any part thereof. Applications for a rehearing were filed by the Cincinnati Company and by the Railway Company, which were denied. Plaintiff in error has filed a petition in error in which it aslcs that the order of the Commission be reversed, vacated and set aside, or modified according to the equities as they may appear to this court.
    
      Messrs. Jelke, Clark & Forchheimer, for plaintiff in error.
    
      Mr. Orville K. Jones and Mr. Joseph W. O'Hara, for defendant in error, The Queen City Crushed Stone & Sand Company, and Messrs. Henderson & Burr, for defendant in error, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.
   Newman, J.

Before the Queen City Company filed its application with the Public Utilities Commission it made a request of the Railway Company for a switch connection. Plaintiff in error thereupon addressed a letter to the Railway Company, a copy of which was furnished the Queen City Company, in which it contended that it owned exclusively the siding in question, had acquired an indefeasible right in it for railroad purposes, and that the Railway Company had no right or power to make any connection with this siding. No such claim, however, was made before the Commission, nor is it made here, the sole contention of plaintiff in error being that the Queen City Company, as a condition precedent to having a switch connection with the siding, should be ordered to. pay it, plaintiff in error, one-half of fifty-five hundred dollars, the amount expended by it on account of the change of location and the work done in connection therewith. The Railway Company recognizes the right of the Queen City Company to a switch connection with its siding, but is of the opinion that plaintiff in error should be reimbursed on account of the money expended by it.

Counsel for plaintiff in error insist that the physical layout of the tracks as they existed prior to 1915 is immaterial and that the entire matter should be considered as a “clean slate” as of January 1, 1915, with no switch tracks or connection with any of the properties abutting upon the railroad. They lay great stress upon the statement of the superintendent of the railroad, made before the Commission, which in substance is that if the main-track layout were the same as it was prior to January 1, 1915 — that is, a middle siding between the two tracks with no sidetracks leading to either the plaintiff in error or the Queen City Company — and the latter company were to make application for a switch, the Railway Company would require of it a layout very similar to that which was made and paid for by plaintiff in error. In other words, the expenditure made by plaintiff in error would have been made instead by the Queen City Company.

It is to be presumed that had the Queen City Company or any other company made a request for a switch connection, the Railway Company would have made the same requirement that it made of plaintiff in error. But it does not follow that the Queen City Company would have complied with such a requirement. It would have had the right to make and might have made application to the Public Utilities Commission, and there may have been found a more simple and less expensive method of providing switching facilities for the applicant.

But be that as it may, in our view, the Commission was not concerned with conditions existing prior to the filing of the application by the Queen City Company. That company was asking for a switch connection with a siding established on the right of way of the Railway Company. It was owned by the Railway Company. It was under its control absolutely. It appears that it was used for a passing siding, and, according to the testimony of the superintendent of the railroad, where a sid-> ing is used as such it cannot be used for any other purpose without the permission of the railroad company through its train dispatcher. Plaintiff in error had no interest in or right to the siding other than the right to use it in connection with its switch or spur track in the handling of its business, permission having been first obtained from the Railway Company. It is true that the cost of the change of the location of the siding and the rearranging of the yard was paid for by plaintiff in error, but that was done voluntarily under a private agreement entered into by that company. Its provisions had been fully complied with and the matter was a past transaction. We do not see how it could be the subject of inquiry on the part of the Commission. When application was made by the Queen City Company the siding was the property of the Railway Company, and a part of its sys-. tern. It was wholly immaterial whether the cost incident to the change of the location of the siding was paid for by the Railway Company or by plaintiff in error. When the cost incident to the change of the location was paid by plaintiff in error, it did not reserve or pretend to reserve to itself any control or interest therein other than the mere right to use it for the purpose we have mentioned. We do not see, therefore, upon what theory it could expect to dictate the terms upon which another shipper should enjoy the use of property owned by and absolutely under the control of the Railway Company. In dealing with 'the Railway Company, plaintiff in error did so with full knowledge that other shippers might demand a switch connection. It might have protected itself so that it could. have been in a position to compel a future applicant to bear a portion of the expense incurred by it. It failed to do this and there is certainly no authority on the part of the Commission to require the applicant, the Queen City Company, to do so.

In a proceeding such as the one before us, our jurisdiction is fixed by law. Unless it appears, from a consideration of the record, that the final order made by the Public Utilities Commission is unlawful and unreasonable, the order cannot be disturbed. We are constrained to hold that the Commission was correct in the order made by it.

Order affirmed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.  