#### VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 29 April, 1914.)

1. Railroads — Condemnation — Railroads Crossing Railroads — Statutes — Court.

Revisal, sec. 2556 (5) and (6), give the right to a railroad company “to condemn and acquire a right of way across the road of another company to construct a spur track to manufacturing plants,” etc., which is also given to the plaintiff: in this action of condemnation by its charter; and the courts cannot restrict this statutory right to be exercised by a railroad to cases in which the courts may approve its reasonableness or expediency.

2. Same — Yard Limits — Former Appeal.

The question involved on this appeal by the defendant railroad from a judgment permitting the plaintiff: railroad company to cross its roadway, within its yard limits, by condemnation, in order to put in a spur at an industrial plant, was decided adversely to the defendant on a former appeal of this case, with suggestion of location and method of procedure, under which the defendant may now act, if so advised. 161 N. C., 531.

DefbNdaNt’s petition to rebear.

McLean, Varser & McLean for plaintiff.

B. N. Simms for Kingsdale Lumber Company.

McIntyre, Lawrénce & Proctor and Murray Allen for defendant.

Olakk, C. J.

This is a petition to rebear this case, reported 161 N. C., 531. ‘Tbe facts are there stated, witb a map of tbe location, and it is not necessary to repeat them. It is sufficient to say, as there stated, that this is a “proceeding by tbe plaintiff to condemn a right of way acrosss tbe track of tbe defendant in order to extend a spur track to tbe Liimberton Cotton Mills and tbe Kingsdale Lumber Company plant on tbe south side of tbe defendant’s track and to make connection witb tbe track of tbe Raleigh and Charleston Railroad Company.” After full consideration, we held that “tbe plaintiff bad tbe right conferred by its charter and under Rev., 2556 (5) and (6), to condemn and acquire a right of way across tbe road of another com*426pany to construct a spur track to manufacturing plants or other business enterprises for the handling of their freight.” On the former hearing, the defendant’s brief said: “This is the only question presented.”

The petitioner on rehearing does not assign error in this respect, but contests the CQrrectness of the former decision on two grounds:

1. Because the judge found that the extension of the spur track to the two industrial plants on the south side of the defendant track and to make connection with the Ealeigh and Charleston Eailroad was not necessary.

But this was not a question within the scope of his Honor’s jurisdiction. When the General Assembly authorized the construction of the plaintiff railroad, with the power to construct spur tracks, that was the decision of a political question (Ruffin, C. J., in R. R. v. Davis, 19 N. C., at p. 465), which the courts of course cannot review. The power conferred embraced the right of eminent domain and everything incidental for executing the powers granted by the charter. It may be that the construction of the railroad between the points named in the charter and the construction by it of spur tracks to industrial plants or the other extensions authorized did not seem necessary to many people. But the Legislature settled that matter when it granted the charter. If the company sees fit to put up the money, it takes the risk of the necessity of the work.

The General Assembly by granting the plaintiff’s charter with the powers therein conferred, has found as a fact that the construction of the road was necessary for the public welfare, and neither the Superior Court nor-this Court has the power to review that finding or set aside any of the powers therein conferred. The defendant cannot on appeal call in question the appropriation of the land, if within the power, but can only review the amount of the compensation awarded. Walker, J., in Jeffries v. Greenville, 154 N. C., 497.

The defendant company itself has put in spur tracks to both of these industrial plants and to make connection with the Ealeigh and Charleston Eailroad.

*427Tbe defendant contends tbat tbe proposed spur track is not needed; but tbe fact tbat it bas so vigorously opposed tbe extension by tbe plaintiff of these spur tracks to tbe same plants and to make connection witb Raleigb and Charleston Railroad Company is, however, strong evidence tbat as a matter of fact tbe monopoly which tbe defendant bad of tbe business of those plants was profitable and tbat competition is beneficial to those plants. Indeed, there is evidence tbat while tbe plaintiff railroad receives only $7.20 per car for hauling freight 58 miles, tbe defendant charged for shifting plaintiff’s car witb minimum car-load over its spur track to said plant, 400 yards, $9.20 per ear. This may or may not be excessive, and it may or may not be true, as tbe defendant insists, tbat it is cheaper than tbe plaintiff can do tbe shifting over its own spur track, but tbe plaintiff prefers to put in its own spur track to do this work for itself, and, as we have held, it had tbe right under its charter and tbe general law to do so. "Whether its action is financially -wise or not, is a>. matter for its own decision. Besides this, -the plaintiff and tbe Kingsdale Lumber Company assert tbat tbe defendant has unduly delayed tbe plaintiff’s cars unless tbe freight was. shipped out northward over tbe defendant’s line. It certainly would have opportunity to do so. Tbe Interstate Commerce Commission bas held tbat complaints as to such matters of delay in interstate commerce cannot be reviewed by tbe State Corporation Commission. To make complaint at Washington would be inconvenient and expensive, and it may well be tbat tbe plaintiff would prefer on tbat ground also to put in its own spur tracks.

Tbe public policy of this State is against monopoly, especially as to common carriers, and competition is a far better regulator, when open and fair, than regulation by tbe decree of any commission. Tbe danger tbat commissions are created to guard against is combination between carriers, not competition. Industrial Siding case, 140 N. C., 239; R. R. Connection case, 137 N. C., 71. As we have said, tbe power having-been conferred on tbe plaintiff, as on tbe defendant, to put in spur tracks, tbe question whether it will be financially to tbe *428benefit of tbe plaintiff to do so when the defendant avers that it is ready to' do the work much more cheaply for the plaintiff than it can do the work for itself, is a matter which the plaintiff has a right to decide for itself. It may be unwise or ungrateful for the plaintiff to reject the benevolent offer of the defendant, but the latter cannot invoke the law to protect the plaintiff from its own folly. Evidently the defendant does not think that the competition of the plaintiff’s spur track will be to the defendant’s interest.

2. The other proposition advanced is that the plaintiff should not be allowed to cross the defendant’s track within what it calls its “yard limits,” that is, at any point where it has a sidetrack. There are very many instances in this -State, as at Charlotte, at Wilmington, ■ at Raleigh, and elsewhere, where one railroad crosses another within the yard limits of the latter. In the present case the point of crossing is over one-half a mile east of the defendant’s station at Lumberton. The commissioners to lay out a crossing will always consider such and any other objection to its location, and their action is subject to the supervision of the trial judge. Not only the higher damages necessitated by crossing at a point that is in anyway objectionable to the other company will be a deterrent to the plaintiff road from seeking it, but the sound judgment of the commissioners and of his Honor will prevent the crossing being located at a point that will be unnecessarily detrimental to the defendant. If, however, this is done, the remedy is in correcting the location, and not, as in this case, by forbidding the competing railroad from extending its track across the line of another railroad at all.because the presiding judge may happen to think that the' industrial plant seeking a competitive outlet for its business does not really need the benefit of any competition. It is worth noting that the defendant agreed that the damages from crossing at this point is $300.

Indeed, it will be sufficient to repeat, on this.point, verbatim what we said in this case, 161. N. C. at p. 537, as follows: “The defendant urges that it will be great inconvenience to it for the plaintiff to condemn ‘a right of way across its track at *429a point where it has a side-track, and thus interfere with the use of that siding for shifting and for placing box cars. The plaintiff replies that the defendant has .only recently extended its side-track to that point, and for the very purpose of creating this grievance. However that may be, an examination of the map shows that, less than 100 yards east of the point where the plaintiff seeks to cross the defendant’s track, the defendant’s side-track ends and a public road crosses there the defendant’s track. There is no reason, so' far as this evidence shows, why the plaintiff cannot extend its track along the north side of the defendant’s track before crossing, and condemn a.right of way just beyond the end of defendant’s sidetrack near the point where the public road now crosses. "While the plaintiff has a right, both under its charter and the general law, to condemn a right of way across the p defendant’s track, this right should be exercised with due regard to the convenience of both parties and with as little interference with the defendant’s use of its tracks as can be obtained without a great increase in the co°st and decrease in its convenience to the plaintiff. We do not see that a requirement that the plaintiff should cross at the point herein suggested will add at all to the length of the plaintiff’s proposed extension of its track nor to the cost thereof. If it should, this matter can be considered by the judge and jury in the assessment of damages for crossing at said point. His Honor, in consideration of the case, when it goes back, will adjudge as to the feasibility of the suggested alteration in the route of the proposed extension of plaintiff’s track, calling in the aid of a jury, if necessary.

“We need not consider the numerous other exceptions made in this case, for, as his Honor held and the briefs for both parties admit, there is hut a single point upon which all other matters depend, and that is the one which we have discussed as to the right conferred hy statute upon the plaintiff to extend its tracks for the purposes above named.

“The ruling of the court below must be set aside and the cause will be proceeded in as indicated in this opinion.”

*430The defendant bas not sought to execute this suggestion, but its petition to rehear is based on opposition to the extension by the plaintiff of its spur track across the defendant’s line at any point whatever, upon the ground that it is not necessary, because it has spur tracks itself to the industrial plants, and avers that it will do the work as well and .as cheaply as the plaintiff can. This is but another way of saying that the ■plaintiff’s competition will interfere with its profits, and the defendant does not deem that this is necessary or desirable, and therefore it has strenuously resisted the competition of the plaintiff’s spur track.

As a matter of fact, it was admitted on the. argument here that the plaintiff’s spur track has been located across the defendant’s line at 'the point in question, under the orders of. Judge Cooke,-and has been in actual operation for some two years. It has not been made to appear that the result has been detrimental to the defendant’s use of its side-track. Should the defendant bona fide desire the location of the crossing to be made at the point indicated in our former opinion, beyond the terminus of its side-track, and near where the public road crosses, or elsewhere, because the present location has proven a hindrance in the use of its side-track, this question can be investigated in this proceeding, under the former opinion of Qthis Court, as above set out. If it is found as a fact that such crossing should be located at the point indicated as feasible in our opinion, or elsewhere, instead of its present location, and it is found that its removal from its present location is necessary, this action can be had by proceeding under our former opinion, and not by this petition to set that 'decision aside.

Petition dismissed.