Arkansas & O. R. v. St. Louis & S. F. R.

ROGERS, District Judge.

This is a civil proceeding under the statutes of Arkansas, and demands relief under two distinct statutes:

First. The condemnation of the right of way across the 18-acre tract of land described in the complaint; and the proceeding for that purpose was instituted under the following sections of Sandels & Hill’s Digest of the Statutes of Arkansas:

“See. 2770. Any railroad, telegraph or telephone company, organized under the laws of this state, after having surveyed and located its lines of railroad, telegraph or telephone, shall in all cases where such companies fail to obtain by agreement with the owner of the property through which said lines of railroad, telegraph or telephone may be located, the right of way over the same, apply to the circuit court of the county in which said property is situated, by petition, to have the damages for such right of way assessed, giving the owner of such property at least ten days’ notice in writing of the time and place where such petition will be heard.”

“Sec. 2772. If the owner or owners of such property be non-residents of the state, infants or persons of unsound mind, such notice shall be given by publication in any newspaper in said county which is authorized by law to publish legal notices, which notice shall be published for the same length of time as may be required in other civil cases. If there be no such newspaper published in the county, then said publication shall be made in some such newspaper designated by the circuit clerk, and one written or printed notice thereof posted on the door of the court house of such county.”

“See. 2774. Such petition shall, nearly as may be, describe the lands over which said road is located, and for which damages are asked to be assessed, whether improved or unimproved, and be sworn to.”

“See. 2776. The amount of damages to be paid the owner of such lands for the right of way for the use of such company shall be determined and assessed irrespective of any benefit such owner may receive from any improvement proposed by such company.

“Sec. 2777. In all eases where damages for the right of way for the use of any railroad company have been assessed in the manner hereinbefore provided, it shall be the duty of such railroad company to deposit with the court or pay to the owners the amount so assessed, and pay such costs as may, in *755 the discretion of the court, be adjudged against it, within thirty days after such assessment; whereupon it, shall and may he lawful for such railroad company to enter upon, use and have the right of way over such lands forever.”

“Sec. 2780. In all cases where such company shall not pay or deposit the amount of damages assessed as aforesaid within thirty days after such assessment, they sliali forfeit all rights in the premises.

“Sec. 2781. The words ‘right of way’ as used in this act, shall he construed to mean and include all grounds necessary for side-tracks, turn-outs, depots, work-shops, water stations and other necessary buildings.”

Second. The condemnation of an easement, merely, across the right of way and the tracks of the defendant company; and for that purpose the proceeding was instituted under the following sections of said digest:

“Sec. 6345. Every railroad corporalion created and organized under the laws of this state, or created and organized under the laws of any other state or the United States, and operating a railroad in this state, shall ha,ve the power to cross, intersect, join or unite its railroad with any other railroad now constructed or that may hereafter be constructed, at any point on its route and upon the grounds and right of way of such other railroad company, with the necessary turnouts, sidings, and switches and other conveniences in furtherance of the object of its construction. And every railroad company whose railroad is or shall be crossed, joined, or intersected by any new railroad shall unite with the owners and corporation of such new railroad in forming such crossing, intersection and connection, and shall grant to such railroads so crossing, intersecting or uniting- all the necessary facilities foi that purpose as aforesaid.

“Sec. 6346. If the two corporations can not agree upon the amount of compensation to be made for the purposes set forth in the foregoing section, or the points or manner of such crossing, junction or intersections, the same shall be ascertained and determined by a court of competent jurisdiction in the same manner as provided for the ascertainment of damages for right of way for railroads.

“Sec. 6347. Every railroad company operating a railroad in this state shall canse all freight and passenger trains running on their roads to stop at all points on their roads where another railroad crosses, joins, unites or intersects and take and receive on their trains all passengers, freights and mail which such railroad so crossing, joining- or intersecting has for shipment at such point, and shall carry the same and shall also discharge all passengers, freights and mail consigned to said point of crossing, intersection or junction of such railroad, and which is to be transported, carried and conveyed on said railroad, and no railroad company shall in any wise discriminate against passengers or freight transported or conveyed by any intersecting railroad company.

"Sec. 0348. Any railroad company violating any of the provisions of the preceding sections shall forfeit and pay to the company injured thereby double the amount of damages which such injured company may have sustained, to be recovered in any court of competent jurisdiction.”

There is no reported case o£ the supreme court of this state, uor iu the United States courts, so far as has been discovered, settling the practice or the nature and character of the judgment to be rendered under the last-named sections of tlie statute providing for the crossing or intersecting of one railroad by another, and the statute itself is so crude and meager in its provisions as to what the court is to do that I have found no little difficulty in framing any judgment adequate to the situation without trenching on legislative ground. It is to be hoped that this case may be taken to a higher court, where some authoritative decision can be rendered for future guidance of the inferior courts, and that the attention of the leg *756 islature of the state may be drawn to the crude, incongruous mass of patchwork legislation in regard to railroads in. this state which now' almost defeats intelligent judicial interpretation and enforcement in many particulars.

It was urged with much persistence that the plaintiff corporation, at the commencement of this suit, had not been organized so as to authorize it to exercise the right of eminent domain. It was not, however, insisted that it had not complied strictly with section 6148 of Sandels & Hill’s Digest. It was insisted that it had not complied with section 6149 of Sandels & Hill’s Digest, and that a compliance with that section of the statute was a condition precedent to its right to exercise the power of eminent domain. To this contention I cannot agree. The question has been settled by the supreme court of Arkansas in the case of Brown v. Railway Co. (Ark.) 56 S. W. 862 . Upon the authority of that case, which is binding upon this court, I hold that, upon compliance by plaintiff with the section 6148 of Sandels & Hill’s Digest, the plaintiff became an incorporation vested with the right to exercise the power of eminent domain, and that its failure to comply with the subsequent provisions of the statute, if such were true, relating to its organization, are questions which the defendant cannot raise under the statutes and decisions in this state in a proceeding like this, but that such questions must be remitted to the state under whose laws the plaintiff corporation was organized.

It was also urged that the plaintiff corporation had not complied with the act entitled “An act to amend the railroad laws of this state,” found on page 365 of the bound acts of Arkansas, approved May 8, 1899. This act was not in force when the plaintiff corporation was organized or this suit was brought. It has no application to the case, and does not affect the organization of the plaintiff corporation, or impose any duty upon it as a condition precedent to the right to maintain this suit.

It was insisted that the plaintiff corporation, in seeking to build into the town of Rogers, was extending its road. Such is not the case. If the work now sought to be done was being prosecuted by the Benton-ville Railroad, which plaintiff corporation absorbed, the contention might be pressed with much force that it could only be done after a compliance with section 6176 of Sandels & Hill’s Digest, as amended by the act of May 8, 1899. But such is not the,case. The plaintiff corporation, when organized, was not, under its charter, compelled to buy the Bentonville Railroad, or, after buying it, to continue the use of its whole line. It took out an original charter of its own, and defined its termini. It had a right to do this, and, if it chose, it had the right to absorb by purchase the Bentonville Railroad. But such a purchase did not compel it to adopt its whole line. It may be that,- under the provisions of the constitution of this state, the plaintiff would not have had the right to have paralleled the Bentonville road from Rogers to Bentonville with its road; but whether it did or not was not a question for the defendant corporation, but was a question for the state. Surely, if it had the right to buy the Bentonville Railroad, it might use such portions of it in operating its own line as it saw fit, *757 and I know of no authority or power anywhere to prevent it from abandoning other portions so long as it operated its line of road from Rogers to Bentonville. At all events, as stated, these were not questions the defendant could raise, but questions for the state, whose creatures all domestic corporations are. The construction of the road into Rogers by plaintiff was not, therefore, an extension of its line, nor was it a branch line. It was merely the construction of its line as originally chartered, which charter was in no wise affected by the act of May 8, 1899. And the mere fact that in constructing its road from Rogers to Bentonville it used the greater portion of the old line of the Bentonville Railroad does mot alter the fact tha t it was simply constructing, under its original charter, its own road.

Several other questions of a purely technical character were raised by the defendant corporation, hut I think they are wholly without merit, or are determined either by the special findings of fact or the principles decided in Brown v. Railway Co., supra.

Much evidence of an expert character was taken in this case in the effort to show that no public necessity liad been shown for building this road down Arkansas street to a point opposite the defendant’s depot, in the town of Rogers, and hence no right to cross its 18-acre tract and its main line and switches on either side thereof; second, that, if such necessity existed, other points of crossing and other routes into said town were equally accessible, less injurious and dangerous to the public and the defendant’s employés and business interests, and that no engineering obstacles or difficulties interposed jo prevent the adoption of such other routes, and that it was only a matter of economy that-the route sought was adopted; third, that the right of way and 18-acre tract were already condemned for railroad purposes, and should not, in the absence of imperative necessity, such as would defeat the purpose of plaintiff’s charter rights, be condemned for other like railroad purposes by another corporation; fourth, that great loss and injury would be sustained by the impairment of the usefulness of defendant’s yards if the crossing sought was allowed; fifth, that the grade of defendant’s road at that point was unfavorable to a crossing; and other obstacles, more or less speculative and imaginary, were pressed with apparent zeal and pertinacity on the attention of the court. The St. Louis & San Francisco Railroad Company, although a foreign corporation, can only do business in this state by conforming to its laws. It is here by the grace of the state, and not by any right conferred upon it by any other sovereignty. Being here by the grace of the state, it is entitled to the full protection of its law's; and, on the other hand, it should cheerfully conform to any laws regulating it enacted for the general welfare of its people and the interests of the state.

Section 1, art. 17, of the constitution of Arkansas of 1874, provides:

“All railroads, canals and turnpikes shall be public highways, and all railroads and canal companies shall be common carriers. Any association or corporation organized for the purpose shall have the right to construct and opérale a railroad between any points within tliis state, and to connect a,t the state line with railroads of other states. Every railroad company shall have the right with its road to intersect, connect with or cross any other road, and shall receive and transport each tlu> other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination.”

*758 Section 9 of the same article provides:

“The exercise of the right of eminent domain shall never be abridged or SO' construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use the same as the property of individuals.”

, Section 6175 of Sandels & Hill’s Digest confers extensive powers upon corporations, and also places upon them liabilities and restrictions, and, among other things, provides that they shall have power “to construct their road upon or across any stream of water, water course, road, highway, railroad or canal, which the route of the road shall intersect.” And by the sixth paragraph of the same section it is provided that they “shall have power to purchase lands or take them, may change the line of its road whenever a majority of the directors shall determine, as is hereinafter provided, but no such change shall vary the route of such road to exceed five miles laterally.” It will be seen, by reading sections 1 and 9 of the constitution of tins state, above quoted, that every railroad corporation doing business in this state, and holding property therein, holds the same subject to the state’s right of eminent domain, and to have its property and franchises subjected to public use, the same as the property of individuals. It will ajso be seen that all railroads have the right to construct and operate their lines between any points within this state, and the further right to intersect, connect with, and cross any other road, and are compelled to receive and transport each the other’s passengers, tonnage, and cars, loaded or empty, without delay or discrimination. And the legislature of this state, by the act of March 20, 1883, embraced in sections 6345, 6346, and 6347, above quoted, in pursuance of the foregoing provisions of the constitution, gave every railroad' corporation created and organized under the laws of this state, or the laws of any other state, and operating a railroad in this state, the power to cross, intersect, join, or unite its railroad with any other railroad now constructed, or that may hereafter be constructed at any point on its route, and upon the grounds or right of way of such other railroad company, with the necessary turnouts, sidings, switches, and other conveniences in furtherance of the object of its construction; and it enjoins upon every railroad company whose railroad is or shall be crossed, joined, or intersected by any new railroad to unite with the owners and corporation of such new railroad in forming such crossing, intersection, and connection, and to grant to such railroads so crossing, intersecting, or connecting all the necessary facilities for that purpose. It also provides that, if the two corporations cannot agree upon the amount of compensation to be paid for the purposes hereinbefore stated, or cannot agree as to the points or manner of such crossing, junction, or intersection, the same, shall be ascertained and determined by a. court of competent jurisdiction, in the same manner as provided for the ascertainment of damages for right of way for railroads. It is also provided in section 6347 that every railroad company operating a railroad in this state shall cause all freight and passenger trains running on their roads to stop at all points on their roads where another railroad crosses, joins, unites, or intersects, and take and receive on their trains all passengers, freights, etc., and for failure to do any of these things such railroad company *759 forfeits double the amount of damages which the injured company may sustain, to be recovered in any court of competent jurisdiction. It was the duty, therefore, of the St. Louis & San Francisco Eailroad Company, upon application of the plaintiff corporation, to unite with it in effecting the crossing of its road; and what is meant by the word “unite” is “to concur, or act in concert with” the plaintiff corporation in accomplishing that end. And it was its duty to do this in good faith, and to offer all necessary facilities with the view of accomplishing that purpose.

In the premises now under consideration the defendant company, in the opinion of the court, while protesting its desire not to be captious, but amicably disposed to unite in effecting the crossing of its road by the plaintiff company, has wholly failed to obey either the law or the spirit of the constitution and laws of this state regulating the crossing of railways. By permitting the Bentonville Eailroad, while it was in existence, and the plaintiff company after it absorbed the Bentonville road, the use of its track for three-quarters of a mile in order to reach its depot, it recognized and admitted the public necessity for the plaintiff company, after such joint facilities were denied, to extend its line as near to the defendant’s depot as possible, and manifestly for the mutual convenience of the traffic and travel of both roads, for both roads are compelled by the statute of the state (which it is to be presumed they both wish to obey) to stop all trains at all intersections or crossings, and to receive each the other’s passengers, freight, and cars. If this could be done at the defendant’s depot, and to the satisfaction of both roads and the public, rather than to have two depots and two stops within three-quarters of a mile of each other, manifestly it was for the mutual convenience of both roads, and more satisfactory to the public, to do so. And so, when the defendant company, after submitting the request to cross at the point designated to its engineer, and having received his report, then wrote plaintiff to the effect that the point suggested by plaintiff for crossing was as little objectionable as any other point it could name, it not only conceded the necessity for the crossing, but it also waived all objections to the point suggested. The effort, therefore, to show that there was no necessity for a crossing, and that the point suggested was ruinous to its business interests and to its yard, and that the grade of its road was such as to make it expensive and dangerous to have the crossing there, is, of necessity, futile. All these objections are merely subterfuges and afterthoughts, — obstacles intended to embarrass a crossing already conceded to be proper and necessary, — and do not address themselves either to the judgment or charitable consideration of the court. Manifestly, the real reason the defendant company opposes the crossing is its desire for a contract enabling it to introduce an interlocking plant at the crossing whenever, in its judgment, it becomes necessary, without expense to itself. But should such alleged obstacles now have consideration, under the circumstances of this case? After the Yoakum letter of January 28, 1899, set out in the special findings of fact, was written, the plaintiff company, in good faith, and relying on that letter, purchased,, at considerable expense, lands *760 lying north and west of the 18-acre tract, and graded its main line, wye, and switches thereon down to the north line of the 18-acre tract at the point designated for entering upon the same, and began laying its iron thereon, when for the first time it then discovered that defendant was laying a switch on its right of way along the east side of the 18-acre tract, and west of its main line, and also extending another switch, not in any general use or demand, on the east side of its main line, so as to obstruct, by both said switches, the point of crossing which had been agreed upon. If the point of crossing agreed upon should now be denied plaintiff, these lands and the money expended on the roadbed, switches, and wye is a dead loss to the plaintiff, not to say anything of the annoyance and delay in procuring another crossing, and the expense of procuring grounds and right off way for approaches thereto. In the opinion of the court the defendant company should be estopped from being heard to say that the crossing was not necessary, or that the point suggested was not a proper one, or that the 18-acre tract was not subject to condemnation, or that the crossing of the defendant’s line at the point designated would materially injure its business or its yards. But, if it was not estopped, the court is of opinion, from the testimony, that such is the case, and so holds. This conclusion eliminates from consideration the question as to whether there are other eligible routes over which the plaintiff company could reach the same point by the expenditure of a sufficient sum of money. -This, no doubt, is true. It might cross at the old intersection of the Bentonville road, and condemn its way through the residence property of citizens on the east side of the defendant’s main line down to the north end of Arkansas street, and thence down that street to a point opposite the defendant’s depot. The distance, however, would be greater, and the expense much larger. Moreover, the persons through whose lands the road would then run have the same right to object and protest against the condemnation of their homes as the defendant company has as to its 18-acre tract, and to urge, with greater reason and justice, that the route which is now sought is more economical and direct, and over land wholly unoccupied for any purpose, and therefore that their homes and property should not be destroyed.

But it may be said that the defendant did not agree to the point designated for a crossing except upon condition that an interlocking plan! be put in. Where does the defendant acquire the right to demand an interlocking plant at the expense of plaintiff? Can it dictate its own terms, without regard to the rights of the plaintiff? Why should it have the exclusive right to do this, when it accepted its own right to do business in this state upon condition that its road might be crossed by other roads at such points as they might see fit? Of course, the statute giving the right to the plaintiff company to cross the defendant’s road would not be so construed by the court as to permit a crossing at any point, without regard to the rights of the defendant. The defendant railroad company accepted its right in this state subject to its laws, and also its powers (within constitutional limitations) of changing its laws. One of the conditions imposed by law when it acquired its rights was that any other *761 road should cross it, and that it should offer all proper facilities therefor. In the opinion of the court, neither road had any other or greater right than the other as to the manner of crossing, or the appliances to be employed. Both should be reasonable, having regard for the common safety and rights of each other and the rights of the public; and, in the event they could not agree as to the amount of compensation and point of crossing, such questions must be remitted to the courts for determination. In the opinion of the court, the demand of the defendant company for an interlocking plant at Bog era was unjust, unreasonable, and oppressive, and should not be enforced. In the face of the admitted fact as to the practice of this large, well-regulated, and ably-conducted railroad system that nowhere on its 1,600 miles of railroad has it a single interlocking plant iit any place similarly situated and of the size of Rogers (which is an interior town in the mountain regions of Arkansas), the expert testimony of the engineers as to the necessity of such a plant at Rogers is utterly impotent of any probative force. Such testimony challenges the humane and intelligent management of its large proper-lies, and imputes to it neglect of duty to the public in not having constructed these plants at the numerous crossings on its own lines passing through large towns confessedly with much better prospects of growth and larger possibilities for the future. I ain not willing 1<> admit that the defendant corporation is open to such neglect of duty, nor that, if sued for an injury resulting at any crossing where wo interlocking plant exists, alleging that the injury resulted from the absence of such plant which it was its duty to have provided, the defendant company would be willing to concede its failure to have such plant to be negligence, nor that the courts would hold, as a matter of law', that it was negligence; nor do 1 doubt, from the testimony in this case, that defendant company would be able to show' that such plants were not usual, customary, or necessary at places such as Rogers, Ark. The demand made, therefore, of plaintiff company for a contract providing for an interlocking plant, was a demand the defendant company had no right to make under present conditions; nor can mere speculations as to the future growth of Rogers be made the basis for* compensation for probable injuries resulting from the absence of an interlocking plant, or the basis for damages so purely speculative as the testimony develops in this case. It may be that the little mountain resort, now quietly and modestly nestling among the apple orchards of that prosperous and lovely region beyond lire Ozarks, and chiefly, as well as justly, celebrated for its good water, pure air, red apples, and happy, contented, and rustic population, favored as it is by the somewhat familiar and euphonious name of “Rogers,” will, in a few years, be metamorphosed into a great commercial metropolis, and that its unpretentious and rural people will give .place to the surging, struggling masses of a busy mart of trade and commerce; but these optimistic speculations as to the future are altogether too dreamy and ethereal to become the basis of diimages for land (though most favorably located in the event the prophetic destiny of Rogers shall be realized), now simply an abandoned common, and at most not worth *762 more than f 100 per acre. The courts, under the most favorable circumstances, do not deal with things so fanciful and visionary, and in this dry, hot, sultry weather, only things real, tangible, and practical command a patient consideration. Moreover, a glance at the blue-print map introduced by the defendant, and which was explained to the court, shows the route selected to be the only practicable route; since, if the road had been run on the west side of defendant’s main line' to a point opposite the defendant’s depot, it would have been compelled to have condemned for right of way not only a part of the defendant’s reservation for railway purposes, on which stand various railway improvements, in order to reach the point, but to condemn a part of said reservation for depot purposes, or else condemn a right of way along Douglas street, the principal business street of the town of Rogers, for nearly half a mile, and also locate its depot in that street in the very heart of the town. No court would entertain that proposition for a moment, unless there was an imperative necessity therefor. It will be observed, from an examination of the map, that on the east side of the line of the defendant company, and between its right of way and Arkansas street, there is a strip of property now occupied by various industries; and immediately opposite the depot, upon this strip, a vacant lot. It does not appear from the proof where the plaintiff company expects to build its depots, but it will be assumed, in the absence of proof, that it would not attempt to obtain, by condemnation proceedings, a line of road to the point mentioned in the complaint without having first examined into at least the question of procuring sufficient property upon which to establish its depots, and especially since the statutes of the state designate the character and kind of depots which every railroad company must maintain. Sand. & H. Dig. § 6219, as amended by the act of March 31, 1899 (Bound Acts, p. 152).

It is contended that the 18-acre tract constituted a part of the defendant’s switch yards; that said tract and the right of way had been dedicated for railway purposes, and should not be condemned by plaintiff for a like purpose. This 18-acre tract, on which was constructed a roundhouse and some tracts leading thereto, had been used for a few years for that purpose, but as far back as 1886 or 1887 it was abandoned by the defendant company for all railway purposes. A single track, however, was left, leading to the roundhouse; and an oil company, for its convenience, built an oil tank and office by the track. The roundhouse became dilapidated, its walls crumbled down, roof rotted off or burned by tramps, who made it a rendezvous, and the whole tract stood for years an abandoned common, used for no ottier purpose than that above stated. It is at its nearest point nearly half a mile from the depot of the defendant company, and the switch yards of defendant are principally beyond the depot, and on the opposite side and south of town. When plaintiff company began negotiations early in 1898 for new arrangements for terminal facilities at Rogers, and until after the Yoakum letter dated January 28, 1899, this 18-acre tract remained in the condition I have described, used for no railroad purposes whatever, and there were no switches on either side of the defendant line obstructing the *763 crossing at the point designated in the complaint, and no apparent necessity for additional trackage seems to have urgently pressed itself upon the management of the defendant company. This is made to conclusively appear by the Yoakum letter bearing date January 28, 1.899; but after the interview in St. Louis between the president of the plaintiff company and Mr. Yoakum, the vice president and general manager of the defendant company (which interview must have occurred in the month of February, 1899, and in which the former refused to stand the expense of an interlocking plant, and declared his purpose to force his way through the track, and to cross the defendant’s line at the point designated in the complaint), ostensibly there sprung immediately into existence an urgent necessity for more trackage at Rogers. It does not appear that any appreciable increase in business had occurred between January 28, 1899, the date of the Yoakum letter, and March, 1899, a space of about 30 days, when this new trackage was put iu; but, nevertheless, the necessity for the additional trackage was ostensibly necessary and urgently pressing, — so pressing that Mr. Bisbee, the defendant company’s engineer, was authorized to put it in, using his discretion when and where it should go. Mr. Bisbee tries to make it appear that he had received instructions to put in more trackage at Rogers the previous year; but, if he did, the necessity for it does not appear to have occurred to Mr. Yoakum in his letter of January 28,1899, and that it was necessary to put it in so as to obstruct the crossing at the point designated in the complaint. But Mr. Bisbee proceeded at once to put in the trackage, and he put it in, not on the 18-acre tract, but on the defendant’s right of way, alongside thereof, and the full length, of the track, and put it iu in such a way as to make it the greatest possible obstruction to plaintiff’s crossing at the point previously designated by plaintiff and agreed to by defendant. He also extended a spur switch on the east side of defendant’s track about 136 feet, so as to make it also an obstruction to the plaintiff crossing at the point designated and agreed upon. This 136 feet must have given the defendant company great relief, for one of the witnesses who lives north of that switch, and who passes it every day in going to and from town, says that he has never seen the switch open nor a car on the track. Confessedly, these were obstructions put there in bad faith, and for no other purpose than to force defendant to terms, which, as we have seen, were unjustly and illegally demanded.

Plaintiff had a right, under the constitution and laws of Arkansas, to cross defendant’s line, and it was defendant’s duty to assist in making the crossing, and afford all necessary facilities. Instead of doing so, it set to work, in bad faith, to obstruct and defeat the plaintiff in doing what the law gave it the right to do, and in so doing it disobeyed the statutes of the state, to the detriment and injury of the plaintiff company, and now it seeks to defeat plaintiff in making its crossing at all, and, in the event it fails in that, to secure large damages for injury to the defendant’s yards, claiming that the .18-acre tract is a part of its yards, when in truth it is not now, and has not been for 10 or .1.2 years; and also to secure damages because of crossing its two switches, put in as mere obstructions, and in or *764 der to deter plaintiff from crossing, and, failing in that, to get additional damages therefor. Conduct like this does not commend itself either to the judgment or the conscience of the court. No one should be allowed to gain by his own wrong. The court is of opinion that the plaintiff company has a right to cross the road of the defendant at the point designated in the complaint, without reference to its switches, which were placed there as mere obstructions; and that, if it shall become necessary, in future, for the defendant company to use any portion of the remainder of its 18-acre tract for switches, it will be time enough then to determine how and on what terms the crossing of plaintiff company’s prospective line of road should be made. The court is of opinion that a strip of 100 feet in width should be condemned across the 18-acre tract to the use of the plaintiff company as a right of way for its railroad, and that the plaintiff company should pay for said land, and for the damage to the remainder of the track the sum of $550; and that an easement should be condemned across the right of way and track and switches of the defendant company, as described in the complaint, to the use of the plaintiff, of a width sufficient. for one standard-gauge railway track; and that for said easement and damages which the defendant sustains by reason thereof the plaintiff should pay the sum of $450, making damages in the aggregate of $1,000. The court is of the opinion, also, that the labor, material, and all appliances necessary to be furnished for crossing at grade the defendant company’s railway and mill switch should be furnished by the plaintiff, and that in making said crossing the rail furnished should correspond to the rail used at that point by the defendant company, and the work should be done in a safe and workmanlike manner, and that the defendant company should furnish the necessary facilities for the same, as the statute requires. The court is further of the opinion that the crossing should be what is usually known as a “grade” crossing, with such facilities as are usual and necessary under like or ordinary circumstances, and without any interlocking plant, and that the $1,000 hereinbefore assessed as damages should be paid to the defendant company, or into the treasury of this court for the use of the defendant, as the plaintiff may elect, within 30 days next after the rendition of this judgment; and upon its failure to do so all of its rights herein adjudged should be forfeited, and the judgment in its favor held for naught. The court is further of the opinion that, under the circumstances of this case, each party should pay its own costs.