Opinion
No. 20768
Decided March 28, 1928.
Public Utilities Commission — Application denied to require railroad to install switch track connection — Section 527, General Code — Applicant's building under construction, no business transacted therein or freight tendered railroad — No definite proof of future business for railroad after building leased — Motion to dismiss application, treated as demurrer to petition and evidence.
ERROR to the Public Utilities Commission.
On July 11, 1927, the plaintiff in error, Janet M. Halliday, filed an application with the Public Utilities Commission against the Wheeling Lake Erie Railway Company, asking for an order to install a switch track connection with her building from the main line of the railway. The application recited that the building, containing some 25,000 square feet of floor space, and of the value of $50,000 or more, was at that time under construction, and that a switch track was necessary to provide petitioner or occupants of the building with railway facilities in connection with the use and occupation of the building for manufacturing and other business purposes. This application further recited that the petitioner was "unable to state definitely the volume of business, but represents that there is and will be a substantial amount of an intrastate character which will be of great value to said railway company;" and further alleged that the railway company refused to give the required switch connection.
Her application recites that she had constructed, at her own expense, part of a switch track of standard width, about 275 feet in length, and had requested of the railway company the construction of a switch track about 300 feet in length between its main line and the switch track of her own construction, which she alleges could be done at an expense to the railway company of $1,200. She alleges that the failure and refusal of the railway company to make such switch track connection is unreasonable and discriminatory, in that it deprives the petitioner and the occupants of the premises of switching facilities and deprives her of the proper use of her property for manufacturing and business purposes.
The railway company answered the application and the cause came on for hearing before the commission. At the close of the petitioner's case counsel for the railway company moved to dismiss the complaint upon the ground that the commission was without jurisdiction to hear and determine the cause. The commission sustained this motion, assigning as a reason therefor that "the complainant has not offered to the defendant any freight for transportation." An exception was taken to the sustention of the motion to dismiss, and a rehearing asked for and denied; whereupon error proceedings were instituted in this court.
Mr. R.G. Curren, for plaintiff in error.
Mr. E.C. Turner, attorney general, and Mr. A.M. Calland, for Public Utilities Commission.
Messrs. Squire, Sanders Dempsey, for the Wheeling Lake Erie Railway Company.
The motion of the railway company to dismiss may be treated as a demurrer, not only to the petition, but to the evidence adduced in its support. The applicant relied, for relief, on Section 527 and cognate sections of the General Code.
The railway company was asked to construct a switch track some 300 feet in length and to connect it with its main line, at an expense to itself of about $1,200. The petitioner's building, both at the time of filing the application and at the time of hearing, was still under construction. No business had been transacted upon the premises, nor any shipment tendered; nor was there any definite proof of the amount of future business that would be furnished to the railway company should the owner have procured tenants for her building. On the trial the testimony tended to prove that the owner had been in negotiation with prospective lessees for a lease of the building, but that their signatures could not be obtained until the switch had been constructed and connected with the railway's main line. If the leases were executed, the amount of freight that might be tendered by the prospective lessee occupants was entirely speculative.
The railway company owes a duty to a shipper, to the public, and to itself. The commission is authorized by statute to supervise the practice and regulations of railway companies and make such orders in connection therewith as it determines to be reasonable.
Private negotiations between the petitioner and the railway company had been entered into, but it is claimed that these had ended in ultimate failure of agreement. Under the circumstances surrounding this transaction we are unable to see that the commission erred in dismissing the complaint of the petitioner, or that its action in that regard was discriminatory or unreasonable.
The answer of the railway company alleged that the question at issue was pending in the court of common pleas of Cuyahoga county, where a third party had instituted suit in injunction against each of the parties to the present proceeding, and that a temporary restraining order, made by a judge thereof, was still in force and effect.
In view of the conclusion reached, we do not think it necessary to decide whether the injunctive order made in the judicial proceeding precluded the petitioner from applying to the commission for relief.
The order of the commission will be affirmed.
Order affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.