purpose than to serve the mine of the coal company, until further use is granted by the commission in a proper proceeding..

cern, and each case must rest largely upon its own facts.

In Detroit & Mackinac Railway Co. v. Boyne City Railroad Co. (D. C.) 286 F. 540, the term "spur tracks,” as distinguished from extensions and connecting or new lines, as

Appellant contends that the recital in these orders is of no validity, for the reason that the track, when constructed, will become a public track, and the commission has no pow-used in the Transportation Act, was held to er to limit the use of it. It also contends mean tracks used for loading, reloading, storthat the proposed track is not a private or ing, and switching cars, merely incidental to spur track, but is a track connecting three the regular train haul, while the latter are railways, and is an extension of the lines of tracks over which there are to be train moveeach; that such a track cannot be laid with- ments in the sense that such movements are out authority from the Interstate Commerce actual transportation hauls from the shipper Commission under the Federal Transporta- to the consignee. The Boyne City Railroad tion Act, under which act the authority of was a line extending from Alpina, Mich., on that body is supreme. It is also contended the west shore of Lake Huron, in a general that the contracts between the coal company westerly direction to Boyne City, on the east and the Illinois Central and Traction line shore of Lake Michigan. For a distance of constitute leases, and that the coal company about 10 miles west of Alpina this railroad has no authority under its charter to build, runs in a southwesterly direction, thereafter own, operate or lease a railroad, and no such turning west to its destination. At a point power can be conferred on it by the commis- 5 miles southwest of Alpina the Detroit & sion. Appellees contend that this is a private | Mackinac Railway, extending directly from spur track; that under sections 45 and 58 the west, crosses the Boyne City railroad, of the Public Utilities Act (Smith-Hurd Rev. St. 1923, c. 111%, §§ 45, 62), and under section 1 of the Mines Act (Smith-Hurd Rev. St. 1923, c. 94, § 1), it has a right to construct the track, and that under section 5 of article 13 of the state Constitution, and section 45 of the Public Utilities Act, appellant is required to permit connection with its railway.

thereafter turning northeast and continuing parallel with that road into Alpina. On the Detroit & Mackinac Railway, 34 miles west of this crossing, is a shale quarry. The Boyne City Railroad Company, by agreement with the Huron Portland Cement Company of Alpina, which owned the quarry, sought to build a track from a point on its main line, 80 rods north of the intersection with the Detroit & Mackinac Railroad, west to the quarry. Pursuant thereto, the Boyne City Railroad Company entered into certain traffic contracts with the cement company concerning the hauling of shale from the quarry to the cement company's plant in Alpina. Injunction was sought to restrain the building of this track, upon the ground that it amounted to an extension of the Boyne City Railroad, and permission of the Interstate Commerce Commission to do so had not been obtained. The question in the case was whether or not the trackage sought to be constructed was a spur track or an extension of the Boyne City railroad. It will be noted that the proposed track in that case extended from the main line of the Boyne City Railroad to the quarry, and ended there, so that it was a track joining a railroad at but one end. The court in that case considered, however, the purposes to which the track was adapted and was to be put, and held that it was an extension of a railway line and not a spur track.

[1, 2] The first question involved in the case is whether or not this track, when constructed, would be a spur track, or, in fact, a railroad extension. If the former, jurisdiction lies in the Illinois Commerce Commission to enter the orders entered herein, provided the evidence shows a proper case; if the latter, the commission has no jurisdiction, as jurisdiction over such matters is vested in the Interstate Commerce Commission by the federal Transportation Act. It is argued that this track is for the purpose, only, of supplying additional railway service to the mine of the coal company. An examination of the plat discloses that the coal company's mine is not on the Big Four, and therefore cannot be considered an industry on that road. It is also shown by the plat and the evidence that the proposed railroad is over 31⁄2 miles in length, while the distance from the coal company's mine to the Big Four at Eldorado is about 21⁄2 miles. Whether this track is a spur track or a connection between two or more railroads, and an extension of one or all, depends, upon the use to which it is adapted. Standard lexicographers de- Considering the contracts entered into befine a "spur track" as a track leading from a tween the coal company and the Illinois Cenline of railway, and connected with it at one tral and Traction line, it is evident that the end only, giving as a synonym "sub track." | parties thereto contemplated a use of the proIt is a matter of common knowledge, how-posed track by the Illinois Central and Tracever, that the term "spur track" is given a tion line much wider than that of bringing somewhat wider application. The line of coal from the coal company to transportation demarkation between a spur track and a lines. The right granted by the coal combranch or connecting line of a railroad, or a pany to the Illinois Central to operate its railroad extension, is not always easy to dis-trains on the track, and to build spur tracks,

(146 N.E.)

and the right granted to the Traction line to, Com'n R. 96, and Penick & Ford v. Director operate its freight and passenger cars over General, 61 Interst. Com. Com'n R. 173. It this track in conjunction with the Illinois will be noted that there was in that case Central, evidences an intention to give to no attempt to force an actual physical conthese roads, as the necessity arose, a much nection with the railroad, but to secure joint wider use of the proposed tracks. The terms mine privileges to a mine not on the Chicago, of these contracts were practically as broad Burlington & Quincy. as those of a lease. These contracts, and the fact that this track constitutes an actual physical connection of three railroads, and is completely adapted to the extension of their lines, make it clear that if built it could not be said to be a private spur track merely for railway service to the coal company's mine.

[3, 4] The question then arises whether or not this track would, in effect, be an extension of any or all of these railroads. Under paragraphs 18 to 22 of section 1 of the Interstate Commerce Act (24 Stat. at Large, 379, as amended Feb. 28, 1920 [Comp. St. Ann. Supp. U. S. 1923, § 8563]), commonly called the Transportation Act, no extension of railway lines can be built, or operation thereon had, without a certificate of convenience and necessity from the Interstate Commerce Commission, and if the construction and connection of this proposed track amounts to an extension of a railway line within the meaning of the Transportation Act, the building of such track, and the connection here sought, are matters over which the Illinois Commerce Commission does not have jurisdiction, sole jurisdiction in such matters being vested in the Interstate Com

merce Commission.

In Ridge Coal Mining Co. v. Missouri Pacific Railroad Co., 62 Interst. Com. Com'n R. 259, the complainant mining company sought by petition, before the Interstate Commerce Commission, to require the Chicago, Burlington & Quincy Railroad Company and the Missouri Pacific Railroad Company to accord to the complainant the status of a

It would seem clear under these holdings that whether such connection is a joint mine status by trackage agreement, or by order of the Interstate Commerce Commission, or is an actual physical connection by bringing a track to the right of way of the road sought to be connected, the result is the same. Both constitute an extension of the latter road to an industry not on its line, and are matters within the exclusive control of the Interstate Commerce Commission under the Transportation Act. While rulings of the Interstate Commerce Commission are not binding on this court, we think them particularly persuasive here, where the matter of this railroad connection is bound up with the whole subject of interstate traffic, of which that commission has jurisdiction.

It appears that the coal company, prior to the institution of the proceedings herein, sought by petition before the Interstate Commerce Commission, against the Illinois Central and Big Four, to secure an order declaring a joint mine status as to its mines. Dering Mines Co. v. Director General (No. 10945) 62 Interst. Com. Com'n R. 265. At that time it was operating a mine on the Big Four eight-tenths of a mile northeast of Eldorado, known as mine No. 3, together with the mine involved in this proceeding. The petition alleged that failure on the part of the Big Four and the Illinois Central to accord such status resulted in unjust discrimination against the petitioner. The Big Four alone defended against the petition. The evidence showed that it had expended over $16,000,000 in improving its facilities, and providing equipment for handling coal traffic in the southern Illinois coal fields, and that it desired to use its equipment and facilities in the service of shippers to whom it was already under obligation. The Interstate Commerce Commission denied the petition, hold

joint mine. Complainant's mine was located on the Missouri Pacific Railway system. It was alleged that the Chicago, Burlington & Quincy had by trackage agreements extended its service to a number of mines competitive with the complainant, which it did not reach over its own rails, and that the complainant would be unduly prejudiced if it were noting that, in effect, service to a mine not on likewise given a joint mine status. The trackage agreements referred to were shown to have been made before the passage of the The Interstate ComTransportation Act. merce Commission in that case, in denying the petition, held that service by the Chicago, Burlington & Quincy, under a joint mine status or trackage agreements to mines not on its line, was in legal effect the substantial equivalent of the extension of its rails to such mines, and that such could not be required without a certificate of convenience and necessity; citing Commercial Club v. Great Northern Railway Co., 24 Interst. Com.

the line of a carrier was the substantial equivalent of an extension of its rails to the mine, and that under the Ridge Coal Mining. Co. Case, supra, such should not be ordered except in case of public convenience and necessity, and where the added burden would not work hardship on the road or its patrons.

Appellant argues that the proceedings in the two petitions under consideration here are but attempts to secure indirectly, through this forced connection, what the coal company failed to secure in its proceeding before the Interstate Commerce Commission just referred to, and that the fact that the Illinois

(146 N.E.)

on the Illinois Commerce Commission juris-) [10-13] A coal corporation is not a public diction of those matters coming under the utility (Public Utilities Act, § 10 [SmithFederal Transportation Act (Comp. St. U. S. Hurd Rev. St. 1923, c. 111%, § 10]), but is a §§ 8563 et seq.). The steam railways involved private enterprise. It possesses no charter here are interstate carriers. That which powers to build a railroad. It is given powamounts to an extension of their lines is er to build railroad tracks by the statute just under the sole jurisdiction of the Interstate quoted only in the emergency there specified. Commerce Commission, and the Illinois Com- The Illinois Commerce Commission has no merce Commission is without jurisdiction. powers except these granted it by the Public [9] Nor is section 1 of the Mines Act ap- Utilities Act. That act gives it no power to plicable here, as appellees suppose. That sec- authorize private corporations to build railtion provides, in part, as follows: roads. Nor does it avail anything to say that under the contract between the parties the Illinois Central is to build the track. The evidence shows that the coal company is to pay for and own it. The railroad company is but the agent of the coal company in the building of the track.

"That whenever any mine or mining place shall be so situated that it cannot be conveniently worked without a road or railroad thereto, or ditch to drain the same or to convey water thereto, and such road, railroad or ditch shall necessarily pass over, through or under other. land owned or occupied by others, the owner or operator of any such mine or mining place may enter upon such lands, and construct such road, railroad or ditch, upon complying with the law in relation to the exercise of the right of eminent domain."

The language of this section authorizes a mining company to build a track leading to its mine where it is so situated that it cannot be conveniently worked without it. There is not here the question of the right of a mining company to build a railroad track in order to have railroad facilities, and it is not intended by that act to give a mining company power to build a connecting track between two railroad lines, or to force a connection with a railroad on which it is not located, without sanction of the legal authority controlling that matter. To so construe this section would be to render the act invalid, as attempting to oust federal jurisdiction under the Transportation Act. Moreover, this mine can be and is being conveniently worked. The only claim of the coal company is that its maximum output is limited by insufficient cars.

Appellees argue that the authority of the Illinois Commerce Commission is established in this case by the decision of this court in St. Louis, Springfield & Peoria Railroad Co. v. Commerce Com., supra. The question in that case was whether the Illinois Commerce Commission had jurisdiction to compel a railroad company to replace a spur track which crossed its track, and which crossing had been removed by it. It was held that, when the spur track was laid and connected with the tracks of a public railway, it became a public track and subject to the jurisdiction of the commission, with power in that body to require the replacement of the crossing removed. The power of the commission to authorize the laying of a railroad track, or to require its connection with a public carrier, was not in the case.

The orders of the Commerce Commission were void, and the circuit court erred in affirming them. The judgment of that court is therefore reversed, and the orders of the commission set aside.

Judgment reversed; orders set aside.

7. Easements 52-Regulation of association of owners, preventing access to owner's prop-of certain premises which were originally erty by person desiring to visit owner, held part of a tract of land belonging to the Norunreasonable.