and continues to refuse the request of the plaintiff, and refuses to stop its cars or any of them at said Lewis resort, and refuses to receive the plaintiff or any one else at that point as a passenger, and also refuses to stop its cars or any of them to permit the plaintiff or any other passenger to alight therefrom at said point. The evidence also shows that at least a number of those who have rented summer residences at the Lewis resort carry on or conduct some business in the city of Ogden and are desirous of passing daily over its line between said resort and Ogden City, and that many of them, including the plaintiff, are considerably inconvenienced by defendant's refusal to stop its cars at the Lewis resort because they must either stop off at the Peery resort and walk three-quarters of a mile east on the defendant's track to reach their summer home at the Lewis resort, or must pass through that place and go to the Hermitage one mile beyond, and then walk down the track for that distance to reach their summer home.

Mr. Lewis also testified that the permission to stop the cars which he gave the defendant in 1909 has never been withdrawn, but further says that he never granted, and that the defendant has not obtained, any other facilities to stop its cars on his land except the one-rod strip which was condemned, and that there are no public roads or highways which enter the resort located on his land. He also says that the resort is purely private, and no one can locate on the land without his permission and without paying rent, and that all ingress and egress to and from the same is shut off between the months of October of one year and June of the following year. It is also made to appear that defendant's cars can be stopped with the same facility at the Lewis resort that they can be at any of the other resorts, and that defendant does stop its cars at at least one place where it has no better facilities to stop them than it has at the Lewis resort.

It is also contended, and the court so found, that the reason for refusing to stop the cars at the Lewis resort is "entirely because of ill will and malice growing out of certain condemnation proceedings instituted against John S.

Lewis by the said defendant." This finding is, however, assailed by the defendant upon the ground that it is not supported by the evidence. The only evidence to support it is the testimony of the plaintiff, who, in answer to a question propounded to him while a witness in his own behalf as to whether he did not know that the defendant would not stop its cars at the Lewis resort before he went there in June, 1910, testified: "Well, Matt. Browning told me that they were going to get even with Mr. Lewis on that proposition, and I rather supposed it was of a temporary nature." By this the witness meant that the refusal to stop cars at the Lewis resort would be merely temporary. When, and under what circumstances, the statement was made, and what, if any, relation Matt. Browning sustained to the defendant at the time it was made, is not disclosed. The finding in our judgment is not supported by any evidence. But, in view of all the circumstances, the finding is without controlling force, as will more fully appear hereafter.

We have been thus explicit in stating the facts for the reason that the case is one of first impression in this state, and because no claim is made that the defendant either in its charter or by contract has assumed the duty of stopping its cars at the Lewis resort. The plaintiff, however, contends that the duty to stop its cars is imposed upon the defendant either by the common law which is in force in this state, or by section 449, Comp. Laws 1907, which reads as follows:

"Every railroad company shall furnish sufficient accommodations for the transportation of all persons and property as shall, within a reasonable time previous to the departure of any train, offer or to be offered for transportation at any station, siding or stopping place established for receiving and discharging passengers and freight, and at any railroad junction; and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or fare therefor; and if the company or its agents shall refuse to take and transport any passenger or property, or to deliver the same at the regularly appointed places, it shall be liable to the party aggrieved for all accruing damages, including costs of suit."

Upon the other hnd, the defendant insists that no such duty is imposed by either the common law or by the provisions of the foregoing section, and further contends that no authority is vested in the courts of this state to require the defendant to establish a depot or stopping place, or to stop its cars, at any particular point along its line of railroad for the purpose of receiving or discharging either freight or passengers, and that, therefore, the district court has exceeded its powers in issuing the peremptory writ of mandate.

1

A mere cursory reading of the foregoing section discloses that it contains nothing from which the court can deduce a legislative command that a common carrier must establish and maintain depots or stopping places at any particular place or places along its line of road. The duties imposed by that section are to be discharged by the common carrier at depots or stopping places which have been duly estab lished, and what is there said had no reference to the establishment of depots or stopping places, or to the stopping of trains or cars, where there are no regularly established depots or stopping places. The defendant, therefore, was not required to stop its cars at the Lewis resort by reason of the provisions of section 449, supra. Nor is there anything in that section or in any other to which our attention has been directed or that we can find which confers upon any of the courts of this state the right or power to determine whether a common carrier should or should not establish and maintain a depot or stopping place for the receipt and discharge of passengers or freight or either at any particular place or places along its line of railroad. There was therefore neither a contractual nor a statutory duty imposed on the defendant to stop its cars at the Lewis resort.

2

The next inquiry, therefore, is: Does the common law impose the duty upon a common carrier to establish and maintain depots or stopping places along its line of railroad for the accommodation and convenience of individuals or communities at points other than such as the carrier in its judgment

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deems necessary and proper in the conduct of its business? If the common law imposes such a duty upon the defendant in this case, and the right of the plaintiff to require the defendant to comply with it is clear and reasonably free from doubt, then the power of the district court to coerce the defendant by mandamus to discharge that duty is likewise beyond question. It is now well settled that the legislature of any state may within certain limitations determine and direct at what places a common carrier shall establish and maintain depots or stopping places for the convenience of the public, and that it may require the carrier to stop its trains or cars, or some of them, at such depots or stopping places, and that the legislature, within what are now well-defined limits, may confer the power to determine whether the carrier shall do so or not upon some board or tribunal. In either case the courts have the power to coerce a defaulting carrier by mandamus to comply with the legislative edict, or with the order of such board or tribunal. 33 Cyc. 43, 44. Upon the question whether the courts may inquire into and determine the necessity for establishing a depot at a certain place, and, if it be found by the court that the necessity for one exists, in the absence of statutory authority to do so, may order a carrier to establish such a depot or stopping place for the receipt and discharge of freight and passengers, the courts are not unanimous. A careful analysis of the cases will show that, while a number of cases are usually cited in support of the doctrine that the courts possess inherent power to control the carrier in the establishment of depots or stopping places, yet there is in fact but one case that really goes to that extent, namely, the case of State v. Republican Valley Ry. Co., 17 Neb. 647, 24 N. W. 329, 52 Am. Rep. 424. The cases upon the subject are nearly all collated by Mr. Elliott in notes to section 662 in volume 2 of the second edition of his excellent work on Railroads. The decisions in all of the cases, except the one from Nebraska, are in fact based upon particular statutes. There are quite a number of courts, however, who have given the subject careful con

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sideration, and, after doing so have arrived at the conclusion that under ordinary circumstances no inherent power vested in the courts of his country to control a common carrier in its determination of the number of depots or stopping places that it will establish and maintain or in the selection of the places where it will establish and maintain them along its line of railroad. Among the well-considered cases in which the question is passed on are the following: Nashville, etc., Ry. Co. v. State, 137 Ala. 439, 34 South. 401; Northern Pac. Ry. Co. v. Washington ex rel. Dustin, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; State ex rel. Smart v. Kansas City, etc., Ry. Co., 51 La. Ann. 200, 25 South. 126; People ex rel. Linton v. Brooklyn, etc., Co., 172 N. Y. 90, 64 N. E. 788; People v. N. Y. L. E. & W. Ry., 104 N. Y. 58, 9 N. E. 856, 58 Am. Rep. 484; State ex rel. Atty.-Gen. v. Southern, etc., Co., 18 Minn. 40 (Gil. 21); Chicago, etc,, Ry. Co. v. People ex rel. Atty.-Gen., 152 Ill. 230, 38 N. E. 562, 26 L. R. A. 224; Honolulu Rapid Trans., etc., Co. v. Hawaii Terr., 211 U. S. 282, 29 Sup. Ct. 55, 53 L. Ed. 186; Atchison, Topeka & S. F. Ry. v. Denver, etc., Ry. Co., 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291.

In Northern Pac. Ry. Co. v. Washington ex rel. Dustin, supra, Mr. Justice GRAY, after discussing at some length the lack of the power of the courts in this regard, at page 500, says:

"To hold that the directors of this corporation, in determining the number, place and size of its stations and other structures, having regard for the public convenience as well as its own pecuniary interests, can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority in analogous cases."

In support of this doctrine both American and English cases are cited. The case of State v. Republican Valley Ry. Co., supra, is referred to by Mr. Justice GRAY, but it is disapproved. It is true that in the Northern Pac. Ry. Co. Case, supra, there is a dissenting opinion concurred in by two of