I concur in the results.
This is one of those cases in which the evidence is barely sufficient to sustain the action of the Commission.
The two issues of importance are (1) the public character of the facilities; and (2) the reasonableness of the construction.
The evidence indicates that the present means of ingress and egress for shippers from the north is dangerous and unsatisfactory. Some improvement was needed to correct this situation and the Commission determined that the solution lay in requiring the railroad company to construct the loading pens on the north of the railroad right-of-way. As part of its order the Commission required the Deseret Livestock Company to grant an easement over certain of its property. This easement apparently permits shippers from the south to drive their stock across the two tracks but if they seek to drive their livestock over this route they will be faced with the same hazards and difficulties as are the shippers from the north who are now using the south loading pens. The facilities, therefore, would be of no use to shippers from the south as the present loading pens answer their purposes and the dangers involved in crossing the tracks would preclude any practical use of the pens on the north by landowners in the south. This would be of little importance if the record disclosed that all shippers from the north had reasonable access to the newly constructed facilities. However, the land to the north of the railroad right-of-way is either owned or controlled by the Deseret Livestock *Page 535 Company and the record contains only one statement which might indicate that other shippers on the north had a legal way to approach the pens from the north. One of the shippers testified that he trailed his sheep across the land of the Deseret Livestock Company and was entitled so to do because of long usage. This testimony plus some vague references to an old highway suggests the possibility that other shippers from lands on the north might have a usable route to the facilities without crossing the railroad right-of-way.
The other issue is largely answered by the activities of the railroad company when request was made to have new loading pens constructed. After the Deseret Livestock Company had complained of the dangers incident to using the old approach and after it demanded new facilities, it suggested a possible location contiguous to a wye located in the general area of Wahsatch, Utah. Agents of the railroad company visited the area, concluded the terrain would not permit building the pens near the wye, and suggested a more appropriate location for the pens. The type of pen to be constructed and its location were largely determined by agents of the railroad company. No issue was made that a cheaper or better method could be devised in spite of the fact that the controversy had existed for a number of years and the railroad company was afforded plenty of opportunity to determine a more economical solution of the problem. From the record and the issues as framed, the Commission could reasonably find that the shippers from the north were only interested in eliminating the dangers and hazards involved in loading from the south and that the railroad company had agreed that if a new means must be provided, the loading pens designed by it and the proposed spur track located by it were the most economical way of removing the difficulties.
For these reasons, I concur. *Page 536