fact that the class actually using it was limited does not render it any the less a common carrier.98 When a public railroad builds a branch line from its road, primarily to accommodate some individual business, it is nevertheless a common carrier over the branch, and the use of the track is open to all who have occasion to use it as well as to the particular individual for whose benefit it was built. The taking of land for a spur track to connect with a single industry is a taking for public use, if the purpose of the company is to maintain and operate such track as an integral part of its railway system, so as to serve all who may desire it, and all can demand, as a right, to be served without discrimination.99 The distinction between the public branch and the private spur appears to lie merely in the facts as to the use which can be made of the road. If it runs for a considerable distance, so that at a future time demands not now in existence may come into being and the road may be of use to a number of persons, it is a public road. If, however, the premises of the individual benefited either directly adjoin the railroad or are separated only by a few feet, so that the intervening land can be accommodated from the main track, then the use is a private one; and that was the fact in the cases previously examined of private spurs.

§ 191. Private railroads.

990

It will follow from what has been said that a railroad, constructed and used merely in connection with the conduct of a private business, is not a common carrier. A railroad built to haul logs out of the forest, nothing more than a logging railroad appurtenant to a sawmill, constructed wholly on private grounds, and operated for private purposes, is not a common carrier, charged with all the duties and responsibilities incumbent by the laws

98 Mfgrs. Ry. Co. v. St. L., I. M. & S. Ry., 28 I. C. C. 93.

"Chicago & N. W. Ry. v. Morehouse, 112 Wis. 1, 87 N. W. 849, 56

L. R. A. 240, 88 Am. St. Rep. 918.

994 Sholl v. German Coal Co., 118 Ill. 427, 10 N. E. 199, 59 Am. Rep. 329.

2

of the land upon common carriers. Even such a railway may be a public one, as a Minnesota case holds: "If all the people have the right to use the road it is a public use or interest although the number who have business requiring its use may be small." It has been held in Louisiana that "a railway, whose sole object was to foster the private ends of two certain persons named, who owned jointly two sugar plantations, and who wished to transport the sugar cane grown on one of the plantations to the refinery situated on the other, was not, ex necessitate, such a corporation for public improvement as would authorize the expropriation of private property for its purposes. And a railroad used in transporting property within a private stock-yard is not a common carrier.1

" 3

§ 192. Industrial railways.

5

An added importance has accrued to this subject because of the comparatively recent invention of a kind of railway known as the "industrial" railway. This is a short line of railway, owned by an industrial corporation or by the owners of some business enterprise, and connecting the factory or the place of business with the main line of some railway. It may amount to no more than a short spur track; but it is organized as an independent railway corporation, and the owners of the industrial enterprise are its stockholders. If such a road, however short it may be, is actually operated independently with its own locomotives and cars, it would seem to be an independent carrier, though it is operated for the exclusive

1 Wade v. Lutcher & Moore Lumber Co., 74 Fed. 517, 20 C. C. A. 515, 33 L. R. A. 255.

2 Kettle River R. R. Co. v. Eastern Ry., 41 Minn. 461, 43 N. W. 469, 6 L. R. A. 111.

3 Williams v. Judge of Eighteenth Judicial Dist. Ct., 45 La. Ann. 1295, 14 So. 57.

1 Swift v. Ronan, 103 Ill. App. 475.

5 Tap Line Cases, 23 Int. Com. Rep. 277.

The term "common carrier" used in the Act means those carriers which are common carriers at common law, and which have complied with such requirements as may be imposed by constitutional or legislative authority. Mfrs. Ry. Co. v. St. L., I. M. & S. Ry., 21 I. C. C. 304.

Its

benefit of the industrial enterprise which owns it; and this is certainly the case where it accepts such general traffic along its line as may be offered to it. Of the possibilities of the recognition of such railway as carriers subject to the Act, the Commission quite early said, by Mr. Commissioner Prouty: "The Illinois Northern Railroad is a common carrier within the first section of the act to regulate commerce. It is incorporated as a railroad company under the laws of Illinois. It actually owns and operates a line of railroad. It maintains a freight station, at which it receives and delivers for the general public considerable quantities of less than carload freight. main business is the moving of loaded cars to and from various industries along its line, and in this capacity it serves more than two hundred plants, besides that of the International Harvester Company. Manifestly there is no reason in law why this railroad may not make joint rates, file joint tariffs and agree upon joint divisions as other railroads do. We are not called upon to decide what the situation might be if this road were a private carrier maintaining switch tracks and switching cars to and from the McCormick works exclusively. The mere fact that this road is to-day entirely owned by the largest individual shipper over it, or that it was originally organized and built for the purpose of doing the work of that shipper, is not, in our opinion, controlling against the legality of the transaction before us."

§ 193. Joint rates.

If such an industrial railway be a common carrier, a through rate may be fixed, originating at the point of loading the timber, together with a milling-in-transit privilege."

Re Divisions of Joint Rates, 10 I. C. C. Rep. 385.

An industrial line, held to be a common carrier, is thereafter a public agency which should collect its charge from former owning industry

the same as from other shippers. 28 I. C. C. 93.

7 Central Yellow Pine Asso. v. Vicksburg, etc., Ry., 10 Int. Com. Co. Rep. 193.

But it is always insisted in this regard that with respect to through transportation, at joint rates, the Act applies only to common carriers. If, therefore, an industrial railway may properly be held to be a common carrier, it is entitled to enter into through routes on interstate traffic." And, if it be determined that the railway is a true common carrier, it is as such entitled to a division of the through rate, the fact that the road is owned by the largest individual shipper over it being of no consequence in this connection. 10 Industrial lines controlled financially by same persons who control the industries which furnish the bulk of their tonnage have repeatedly been held to be common carriers, and entitled to divisions.11 And this is true, although the trackage was originally built for the purpose of doing the work of a particular shipper. 12 The Commission is not concerned with fact that one shipper also owns the mill in which such shingles were produced, while another shipper has purchased the same from the producer.13 It should be emphasized that the Commission has jurisdiction to fix the maximum divisions to be allowed to industrial railways. 14 But it should be noted that transportation allowances under section 15 can only be made to "the owner of property transported." 15 The Commission will scrutinize the situation to see if favors to a tap line are being given, where there is doubt as to being a common carrier, and whether continuance of divisions with it may not be working a discrimination against other shippers. 16 But whether a carrier may grant an allowance to a terminal road that is a common carrier,

8 Mfgrs. Ry. Co. v. St. L., I. M. & S. Ry., 21 I. C. C. 304.

9 St. Louis, S. & P. R. R. v. P. & P. V. Ry., 226.

10 Star Grain, etc., Co. v. Atchison, etc., Ry., 17 I. C. C. 338.

11 McCloud R. L. Co. v. S. P. Co., 24 I. C. C. 89.

12 Crane R. R. Co. v. P. & R. Ry., 15 I. C. C. 248.

13 Reconsignment and Storage of Lumber and Shingles, 27 I. C. C. 451.

14 L. & N. R. R. Co. v. M., St. P. & S. S. M. Ry., 24 I. C. C. 639.

15 B. & G. N. R. R. v. A., T. & S. F. Ry., 24 I. C. C. 161.

16 C. V. & N. Ry. Co. v. M., St. P. & S. S. M. Ry., 24 I. C. C., 634.

while denying such allowance to a terminal road not a common carrier, is not altogether clear." It is, however, well established that common-carrier industrial roads are entitled to be parties to through routes. 18 Moreover, the Commission, in the exercise of the power it now possesses, will inquire whether the line in question has held itself out as being a carrier for the public. 19 If former joint arrangements between trunk lines and industrial lines are cancelled, the Commission may require them to be restored.20 The withdrawal of a joint rate which resulted in advance may be held not to be justified, and the former rate may be restored. 21

§ 194. Tap lines.

If the "industrial railway" is simply a "tap line," not a common carrier operating a service over its rails for all that apply, it cannot pose as an independent carrier and demand the right to enter into prorating arrangements with succeeding carriers. It was pointed out in the recent Tap Line cases 22 that whether a company or person claiming to be a common carrier is a common carrier at all and for all purposes, is a question of fact, and whether the service performed for a particular person is a service of transportation or an industrial service, is also a question of fact; and that where the holding out as a common carrier is in furtherance of a plan to secure unlawful advantages, and the alleged carrier is able to pick up some traffic that is incidental to that purpose, it must

17 Soft Coal Rates from Southern Illinois to Arkansas, 26 I. C. C. 135. 18 Tap Line Case, 23 I. C. C. 549.

19 Stonega C. & C. Co. v. L. & N. Ry. Co., 23 I. C. C. 17.

20 Cancellation of Joint Rates in Connection with C. Z. & G. R. R., 27 I. C. C. 353.

21 Buffalo Union Furnace Co. v. L. S. & M. S. Ry., 21 I. C. C. 620.

22 23 I. C. C. 277.

Incorporation of plant facility, to secure rebate in form of divisions or allowances will not avail. Colonial Salt Co. v. M. I. & I. L., 23 I. C. C. R. 358.

A railway operating a switching service to and from trunk lines may be an interstate carrier. Auton Piano Co. v. Chicago & St. P. Ry., 152 Wis. 156, 139 N. W. 743.