#### Bartlett, Appellant, vs. Chicago *&*Northwestern Railway Company, Respondent.

*May 5*

*May 21, 1897.*

*Railroads: Failure to operate spur trade: Ownership: Pleading: Consideration.*

1. A complaint in an action against a railway company for failure to operate a spur track to a warehouse under sec. 1803, R. S., which fails to show that the plaintiff constructed or owns the track, does-not state a cause of action, the duty of railroad companies to operate such tracks under that section being limited to those provided by the person desiring the service.

3. Although a railroad company constructed a spur track in a public street especially for the benefit of the owner of a warehouse, and such track had been improved and graded by him, a promise by the railroad company to' continue to operate it for his benefit would be without consideration.

Appeal from an order of the circuit court for Fond du Lac county: N. S. G-ilson, ‘Circuit Judge.

*Affirmed.*

The action is to recover damages for the refusal of the defendant to operate a spur track for the plaintiff’s benefit. The complaint alleges, in substance, that the plaintiff is the owner of a large warehouse, used for handling and shipping hay, situated on Brooke street, in the city of Fond du Lac. The main track of the-defendant’s railroad is in the same street near its center. Prior to November, 1874, when the plaintiff became the owner of the property on -which his warehouse stands, there was a spur track from the defendant’s main track to the warehouse which then stood upon the grounds now owned by him, which had been “constructed for the use and benefit of the owners of said property and said warehouse.” It is not alleged by whom this spur track was constructed or maintained. Soon after the plaintiff purchased the property, he improved and graded the spur track at his own expense; and it ivas put in repair, and used and *336■operated by the defendant for the convenience rof plaintiff’s .■business until June, 1893, Then the defendant moved its •depot and made some changes in its tracks. This spur track was extended along the east side of Brooke street, past the iplaintiff’s property, and connected at that end with the main 'track by a switch. The plaintiff objected to this extension •and union with the main track. It was agreed that the •change would not interfere with the use of that part of the spur track which had theretofore been used for the convenience of plaintiff’s business, and that it should continue to be operated for the use and benefit of the plaintiff, as it had been theretofore operated. The spur track was extended along Brooke street parallel to the main line, with which it was connected by a switch at either end. The defendant also constructed another track from its main track, which •connected with the spur track. This track was so located ¡that, when cars are passing over it, there is room on the :spur track for no more than one car to stand, where formerly ■six cars could stand and be loaded. The defendant now runs its regular trains over this last-mentioned track and the extension of the spur track mentioned, which prevents the use •of the spur track by the plaintiff for the purposes of his business. The defendant also uses the spur track by switching passenger coaches thereon and running freight trains over it. The defendant has neglected and refused to operate the spur track for the plaintiff’s benefit, and now refuses to so operate it. The defendant has also refused to furnish the plaintiff •cars, and to permit him to use the spur track as he had been accustomed to do. The plaintiff has been all the while ready to pay for the maintenance and operating of the track, but the defendant has never made a demand therefor. The plaintiff’s property, with the track maintained and operated ;as aforetime, would be worth $25,000. Without the track .so operated, it is worth not to exceed $5,000. Judgment for ■$25,000 is demanded. There was a general demurrer to the *337■complaint, which the court sustained, and the plaintiff appeals.

The cause was submitted for the appellant on the briefs ■of *John*Brennan, and for the respondent on that of *Fish •<& Oa/ry.*

Newman, J.

The real ground on which the plaintiff bases ■his claim to recover is not entirely clear. It is certainly not among the general duties of a railroad company to furnish and operate spur tracks to the warehouses of its patrons. While it is its duty to carry, without discrimination, every man’s goods, when delivered for carriage at its depots or warehouses, it is under no obligation to receive them for carriage elsewhere. If any patron wishes special accommodations, he must buy them. He can compel them only by force of some contract or in pursuance of the statute. No ■doubt the burden is on the plaintiff to show affirmatively ■that the defendant, on one or the other ground, owed to Jaim the duty to maintain and operate the spur track. Unless his complaint state facts which show that the defendant owed him such duty, it is demurrable, and the demurrer was properly sustained.

The statute referred to (sec. 1802, R. S.) is as follows: “ The owner of any elevator, warehouse or mill, at or near any station or terminus of any railroad, may, at his own expense, construct a railroad track from such elevator, warehouse or-mill, to such railroad, and connect with the same by a switch at a point within a reasonable distance from •such station or terminus, and the railroad corporation shall allow such connection. Such side track and switch shall at all times be under the control and management of, and be kept in repair and operated for the benefit of, such owner •or his assigns by such corporation; but the actual cost of .so maintaining and operating the same shall be paid monthly by the owner thereof; and in case of his neglect to so pay *338the same upon demand, the obligation of this section upon any such corporation shall cease until such payment *b®*made in full.” The statute contemplates that the ow'ner of the warehouse to be accommodated shall provide his own. track, and requires the railroad corporation to operate, for his benefit, the track which he has so provided. If the corporation constructs its own track to its patron’s warehouse, to serve its own interest, that case is not within the terms ,of the statute. The statute does not require the corpora^ tion to operate its own tracks for the'special or exclusive benefit of any one of its patrons; but it may operate its own track for its own benefit, and may change its use to better accommodate its own business and occasions. The evident purpose of the statute was to provide for the compulsory operation, by the corporation, of the warehouseman’s own track, for the benefit of his business. It does not seek to> regulate the manner in which the corporation shall maintain or operate its own tracks.

It does not appear by the complaint who constructed nor who owns this track. No facts are alleged from which such facts can be inferred. The only facts which might seem to bear on that question are that tfye track is in the street on which the plaintiff’s warehouse fronts, and was constructed for the benefit of the owner of the warehouse. But the defendant’s other tracks are in the same street, in front of the same warehouse, and were constructed for the benefit of its patrons. And, even if the defendant should have constructed this track especially for the benefit of the owner of the warehouse, that does not bring the case within the conditions of the statute, and does not establish a perpetual duty on tba defendant to operate it for the benefit of that property. The-improving and grading done by the plaintiff, after the track had fallen into disrepair, is of little significance; and, unless the plaintiff owned this track, there was no consideration for the defendant’s alleged promise to continue to operate it *339for his benefit. It could do what it would with its own, without consulting the plaintiff or asking his consent. So it is considered that, because the complaint does not show either who constructed this track or who owns it, it fails to show a case within the statute; and, for the same reason, it fails to show a consideration which would support an agreement to continue to operate the track for the plaintiff’s benefit.

*By the*Court.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings according to law.