The opinion
Wennerstrum, J.
(dissenting) — I am unable to agree with all of the conclusions expressed in the majority opinion and consequently respectfully dissent.
In order that the situation may be better understood a more detailed factual statement relative to the affected property and a brief summary of some of the evidence presented are hereinafter set forth.
The tract involved is approximately 1200 feet in length. It is approximately 200 feet in width at the southwest boundary thereof and approximately 50 feet in width at its northeasterly end. The tract, except on the slough side of the property and a street frontage at the northeast'end, is surrounded by property of the Clinton Foods, Inc. The plaintiffs now have a railroad *1126 siding for their own use on or adjacent to the street frontage of their property and have no need for additional trackage. The small size of the tract does not justify its industrial development except on the part of the Clinton Foods, Inc, and, to a limited extent, by the plaintiffs.
The Clinton plant of the Clinton Foods, Inc. is an extensive one and the corporation has erected additional buildings as its business has increased. This company is engaged at its Clinton location in the processing of food products from corn and soybeans. This plant is located on the southeasterly side of the track-age of the Chicago & North Western Railway Company and also that of the defendant, Davenport, Rock Island and North Western Railway Company. Roth of these railroads now have track-age into the plant grounds. This property extends southeasterly with an average width of approximately 500 feet to the Beaver Slough branch of the river. It extends approximately 4500 feet southwesterly and northeasterly. The southwesterly portion is largely occupied with a factory and buildings and railroad tracks.
Prior to the institution of the proceeding before the Iowa State Commerce Commission, the Clinton Foods, Inc. or its predecessor contemplated the removal of some of its existing buildings, the erection of new buildings and the relocation of the railroad trackage upon its property in order to more effectively and efficiently handle the switching of cars. A survey and study of the plant was made by a firm of engineers and its recommendations were introduced in evidence before the commerce commission. This report shows that commencing at a point approximately 235' feet south of the southerly boundary of plaintiffs’ land are a group of the Clinton Food Company’s buildings. They are now or were served by a spur track which extends northeasterly to a point approximately 35 or 40 feet from the southeasterly corner of plaintiffs’ land. This original spur track connects with the track of the defendant railway company by a switch track running northeasterly in a reverse curve. It was recommended in the engineers’ report that a large storage warehouse be constructed immediately' south of plaintiffs’ land and adjacent to the original spur track. It was also recommended that this spur track be extended northeasterly through plaintiffs’ land and connected with the main track of the defendant rail *1127 way company. Tbe original application before the commerce commission sought a strip of land 60 feet in width in order that two tracks might be provided, one of which might be used for storage of freight cars. However, the commerce commission only authorized the condemnation of a strip 30 feet in width. In the hearing in the district court the transcript of the evidence heard by the commerce commission was introduced, together with all exhibits. In the district court the plaintiffs called certain witnesses who testified on the question of the necessity for the construction of the track through plaintiffs’ property. Testimony and exhibits were also presented by the railroad company.
I. The writer of this dissent is unable to agree with the conclusion reached by the majority -relative to the effect of the finding of the Iowa State Commerce Commission and its authorization to permit condemnation. Permission of the commerce commission is a prerequisite before a condemnation proceeding may be initiated in a situation such as is here presented. Sections 471.9, 1 471.10, 2 1946 Code. It may be true that the legislature has delegated to the commission the right to determine the question of necessity, but I am unable to conclude that the commission’s order is a finality. A reading of the authorities cited by the majority does not, in this writer’s opinion, justify the statement that “the power to so delegate is unquestioned.” The case of Jager v. Dey, 80 Iowa 23 , 45 N.W. 391 , does not so hold. Neither can I so interpret the case of Eikenberry v. St. Paul & Kansas City Shortline R. Co., 174 Iowa 6, 12 , 156 N.W. 163 . See also Crandall v. The Des Moines, Northern & Western R. Co., 103 Iowa 684, 688, 689 , 72 N.W. 778 .
It is my conclusion that where it is provided in section 471.10, 1946 Code, that upon obtaining permission to condemn land for the purposes set out in section 471.9, 1946 Code, the “* * * company shall have power'to condemn the lands so certified *1128 by the commission”, and the statute floes nothing more than authorize the right to proceed by condemnation.
I likewise am unable to give to the citations referred to in the majority opinion, to wit: 18 Am. Jur., Eminent Domain, section 106, and 29 C. J. S., Eminent Domain, sections 87, 89b, the import that it seeks to give. If I understand the authorities referred to they have in mind the grantee of a power to condemn such as a railroad or a municipality rather than a fact-finding board. I have not found any authorities where it has been held that the decision of a preliminary fact-finding body such as a commerce commission is a finality. The authorities that have commented on a preliminary ruling such as was issued in this case hold that they are not even conclusive.
In the case of Limits Industrial R. Co. v. American Spiral Pipe Works, 321 Ill. 101, 106, 107 , 151 N. E. 567, 569 , there is a holding limiting the effect of a ruling of the commerce commission of that state. It is therein stated:
“The findings of the Commerce Commission, its certificate of convenience and necessity and its approval of the isstte of the capital stock of the railroad company are therefore in no way conclusive, and the question whether the proposed use was public or not was open for the consideration of the court on the motion to dismiss the petition. [Italics supplied.] * * *
“Clearly, a railroad company cannot condemn private property for a spur track for the purpose of connecting a particular plant or industry, or a small group of such, with the main line of its road for the private benefit of the plant or industry and of the railroad company. Such a use would not be a public use of the property but a private use for the private profit of the plants or industries affected and of the railroad company. Sanitary District v. Corneau, 257 Ill. 93 , 100 N. E. 517 ; Pittsburg, W. & K. R. Co. v. Benwood Iron Works, 31 W. Va. 710 , 8 S. E. 453 , 2 L. R. A. 680; Gauley & S. R. Co. v. Vencill, 73 W. Va. 650 , 80 S. E. 1103 ; Kyle v. Texas & N. O. Ry. Co., 3 Willson, Civ. Cas. Ct. App. (Tex.) 518, §436; People v. Pittsburgh R. Co., 53 Cal. 694 . The use that will justify the taking of private property by the power of eminent domain is the use by or for the government, the general public or some portion of it, and not. the use by or *1129 for particular individuals or for tbe benefit of certain estates. Tbe use may be limited to tbe inhabitants of a small locality, but tbe benefit must be in common and not to a very few persons or estates. McQuillen v. Hatton, 42 Ohio St. 202 ; Coster v. Tide Water Co., 18 N. J. Eq. 54; Talbot v. Hudson, 16 Gray (Mass.) 417 . If private property cannot be condemned directly for the purpose of a spur track reaching a particular industrial plant or tract, the proposition can scarcely require argument to support it that tbe law will not permit this identical thing to be accomplished indirectly by the subterfuge of organizing a railroad company for the ostensible purpose of constructing and operating a railroad between the railroad already existing and the plant.”
For a holding to the same effect as in the last quoted case see Interstate Water Co. v. Adkins, 327 Ill. 356 , 158 N. E. 685 .
II. Inasmuch as the question of the effectiveness and conclusiveness of the decision of the commerce commission has been raised in the majority opinion I deem it necessary to comment on the position taken by the railway company, as well as that expressed by the majority. The Iowa authorities cited by the majority in support of its contention are cases which concern the issuance by the commerce commission of certificates of convenience for motor carrier service. In re Application of Illinois Central R. Co., 241 Iowa 333, 336 , 41 N.W.2d 98 ; Burlington Transportation Co. v. Iowa State Commerce Comm., 230 Iowa 570, 577 , 298 N.W. 631 ; In re Application of Waterloo, C. F. & N. Ry. Co., 206 Iowa 238, 241 , 220 N.W. 310 ; In re Appeal of Beasley Bros., 206 Iowa 229, 237 , 220 N.W. 306 . There is a particular statute applicable in motor carrier appeal cases. Section 325.23, 1946 Code. It is there provided: “The appeal shall be submitted upon the transcript of the evidence and the record made before the commission and the district court shall either affirm or reverse the order of the commission.” The cases last-cited and from which the railway company claims support are not in point because of the applicable appeal statute.
In sections 472.35, 472.36, 472.37 and 472.38,1946 Code, there are set out general provisions relative to a condemnation proceeding and the necessary papers required to be filed. In section 471.10, 1946 Code, which relates to the findings of the commerce *1130 commission, no provision or direction is set forth requiring the filing of a transcript of the proceedings before the commission as is required in appeals relative to the issuance of certificates of convenience in motor carrier cases. The filing of the commission’s certificate with the clerk of the district court merely authorizes the condemnation. If the legislature had intended to restrict the matter of appeal in railroad condemnation cases provided for in sections 471.9, 471.10 and 481.3, 1946 Code to the record made in the hearing before the commerce commission, it would have so limited the matters to be considered on appeal as it did in the matter of the issuance of certificates of convenience for motor carriers. It has not done so and it has not stated that the ruling of the commission is a finality-.
III. It is my conclusion that this court can and should review de novo the matters pertaining to the necessity of and the justification for the condemnation.
It is disclosed by the record that at the commencement of the hearing the trial court stated that the cause would be heard as in an equity action. Consequently it is my conclusion that all legal and factual questions were properly considered in the district court and can and should now be determined on this appeal. This is true regardless of the fact that in the hearing held on August 14 and 15, 1950, the matters, in part, then considered were the determination of certain legal questions raised by the defendant on its motion presented under rule 105, R. C. P. These questions are the same 'that must necessarily be determined in a disposition of the case if considered as an equity proceeding.
As bearing upon the apparent attitude of the tri^l court in disposing of these matters, it should be related that following the submission of them the court filed on December 21, 1950, findings of fact and conclusions of law. Thereafter on January 29, 1951, the trial court filed what it designated, “Final Decree.” In the findings of fact and conclusions of law, as well as in the decree, the court sought and did make disposition of all the questions presented, both legal and factual.
In the light of the procedure followed, the ruling of the court, and the manner of the final disposition of the proceedings before the trial court it is my conclusion that this court can and *1131 should review this ease de novo on the factual and legal questions presented whether in connection with a ruling on the motion developed by the application of rule 105, R. C. P. or in connection with the submission of the cause as an action in equity.
IV. The determination of the question whether the condemnation of the land sought to be obtained was for “public use” or not can only be reached by a review of the facts as well as the pleadings. In the first place, it is shown that the Clinton Industries, Inc., now Clinton Foods, Inc., joined with the defendant railway company in the application made to the Iowa State Commerce Commission. This fact should not be held to be prejudicial to the present contentions of the railway company. However, the facts hereinafter set forth disclose the real purpose of the condemnation. In the hearing before the commission it is shown by the testimony and exhibits that the proposed new track was desired by reason of a contemplated rearrangement of switch tracks within the plant grounds because of the contemplated erection of new buildings and the general expansion of the plant.
It is shown by the transcript of the evidence presented before the commerce commission that one of the officials of the railway company testified in that hearing that it was true “* * * there would be no other customer of the railroad that would get any benefit or use of it except the Clinton Industries, Inc.”, and he also stated that it was true that the new trackage was being proposed exclusively for the use and purpose of the corporation. The trial court in its conclusions of law very aptly stated:
“Obviously, the proposed construction of the spur track through plaintiffs’ property, thereby giving a direct connection from the defendant’s main line to the existing storage track along the soybean storage and other buildings then on the industry’s property, as well as access to the proposed new warehouse, would constitute a great convenience and benefit to Clinton Industries, but Clinton Industries, being a corporation organized for private profit, does not have the right of condemnation, and its needs or convenience, no matter how urgent, could never confer upon it the right to take private property without the consent of the owner. How, then, can it be said that any public use is involved *1132 in this taking, unless it be held that the taking of property by a railroad corporation for the purpose of laying a track is in itself sufficient evidence of the public nature of the use to which it is proposed to be put 1 This certainly is not the law. The mere fact that the condemnation proceedings were initiated by the railroad company for the purpose of relieving the necessities of the private corporation will not make such taking one for public use.”
It is quite apparent to me, that there has been no showing of public use by virtue of the taking of the plaintiffs’ land. Any public use that might be inferred by reason of the transportation of freight can be obtained by the other trackage into the plant. I am abidingly convinced that the trial court was correct in holding that the taking of the land was for a private and not a public use and as expressed by it, “* * * in contravention of the constitutional provisions relating to the exercise of the power of eminent domain * * This conclusion is supported by our early case of Noll v. Dubuque B. & M. R. Co., 32 Iowa 66, 70 , and many subsequent decisions of this court.
I have read and studied the several cases cited by the defende ant railway company and referred to in the majority opinion. Under the particular facts in this case and the applicable law, they do not seem to me to be controlling. I have given particular consideration to the case of Chicago & N. W. Ry. Co. v. Ochs, 249 U. S. 416, 419 , 39 S. Ct. 343 , 63 L. Ed. 679, 682 , where the growth and development of an enterprise necessitated the enlargement of the plant and the extension of an existing siding. This case is cited as an authority by the majority. In this case the question considered by the court was whether the railroad company should be required to pay the cost of the extended siding. There was not involved the condemnation for additional trackage. I have also given consideration to the case of Union Lime Co. v. Chicago & N. W. Ry. Co., 233 U. S. 211 , 34 S. Ct. 522 , 58 L. Ed. 924 , cited in the majority opinion. This case involved an order of the railroad commission of Wisconsin relative to the extension of an existing spur. In my opinion these holdings of the United States Supreme Court are not applicable to the present case.
*1133 In the case of Cleveland, C., C. & St. L. Ry. Co. v. Commerce Comm. ex rel. Dering Coal Co., 315 Ill. 461, 475 , 146 N. E. 606, 612 , 54 A. L. R. 45, 54, 55, the following statement is made which seems particularly applicable:
“The purpose of section 5 is to afford a coal mine, warehouse or other shipper reasonable facilities for shipping and is not intended to apply to cases where such facilities already exist. !* * * No cases have been cited, and we know of none, holding that a coal mine already having shipping facilities may by authority of this section compel a connection with a second railroad not adjacent to such mine, where to do so would, as in this case,' connect two or more railroads and amount to an extension of them. We are of the opinion that section 5 was not intended to apply to such a case.”
Inasmuch as it is shown that the railway company already has access to the plant of the Clinton Foods, Inc., the cases cited by the majority do not seem applicable.
V. The annotator in 22 L. R. A. (N. S.) 130 has set forth the basic guides in determining whether a railroad spur track will or will not be for a public use, as follows:
“The decisive tests as to whether a branch, spur, or side track from the main line of a railway to a private mine, quarry, or factory is to be ’ constructed for public or private purposes, deducible from the great weight of authority in the United States, according to the court in Ulmer v. Lime Rock R. Co., supra [ 98 Me. 579 , 57 A. 1001 , 66 L. R. A. 387], are these: If the track is to be open to the public, to be used upon equal terms by all who may at any time have occasion to use it, so that all persons who have occasion to do so can demand that they be served without discrimination, not merely by permission, but of right, and if the track is subject to governmental control, under general laws, as are the main lines, then the use is a public One, and the legislature may grant the power to exercise the right of eminent domain to a railroad corporation to construct, maintain, and operate such track; and, if the purpose of the railroad corporation in building any particular branch track is to operate it in *1134 conformity with these requirements, then the power granted by the legislature may be exercised in that particular case.
“The right of eminent domain may lawfully be exercised in behalf of a railroad corporation to acquire land for a switch or spur railroad track leading to private manufacturing establishments, and intended primarily to accommodate their freights, provided the whole public will have an equal right to the use thereof when completed, and so far as it may have occasion to use such track. Chicago, B. & N. R. Co. v. Porter, 43 Minn. 527 , 46 N.W. 75 .”
It seems to me that it will take an extreme interpretation of the foregoing tests to bring them within the situation here presented. In the first place, shippers to the plant have no assurance that their car will go into the plant over the contemplated track-age. One shipper might have his car enter the plant over the original route of the defendant railway company and another over the new route or over the tracks of the North Western line. The route used would depend on the wishes of the consignee, the Clinton Foods, Inc. In that sense it would be permissive. It is shown by the evidence that the contemplated track will serve storage buildings and consequently will serve either the products brought in or those taken out. If it will serve buildings where the finished products are handled it will not be used for bringing in corn or soybeans. If that is the ease it is quite apparent that the track will not be so used that a shipper will have any equal rights in determining how he-wants his ear to enter the plant of the Clinton Foods, Inc. -
VI. It appears that the only basis on which the proposed condemnation can be justified is that the contemplated track will be for a public use. I cannot see how this conclusion can be reached. If we are to carry the holding of the majority opinion to its logical conclusion no property would be immune from condemnation regardless of the number of other existing switch and spur tracks into an industrial plant. This surely was not the intent of the statutes here under consideration.
I would affirm the decree of the trial court.
Hays, J., joins in this dissent.
471J0 Finding by commerce commission. The company, before instituting condemnation proceedings under section 471.9, shall apply in writing to the Iowa state commerce commission, for permission to so condemn. Said commission shall give notice to the landowner, and examine into the matter, and report by certificate to the clerk of the district court in the county in which the land is situated, the amount and description of the additional lands necessary for such purposes, present and prospective, of such company; whereupon the company shall have power to condemn the lands so certified hy the commission.