c10:Nos. 627 and 628

Mr. Justice McKenna,
dissenting.
Let me state the proposition of the opinion denuded of the confusion of its words. It is that the owner of property — a “ joint mine/’ to use the designation of the case — having available to him the car facilities of two carriers, must yield his advantage or some of it to the owner of a “ local mine ” (to use the designation of the case) who is not so situated.
I am unable to assent and yet I hesitate to dissent,— certainly hesitate to do so by unsupported declaration. I am, however, puzzled to go beyond declaration. Exposition seems to be that of demonstrating the certainty and self-evidence of an axiom. The doctrine of the opinion is that the Interstate Commerce Commission, and this Court in sustaining it, can take from property an attribute, almost as tangible an attribute as its physical substance — that is, its position, that which avails and makes wealth of its products. This, in my opinion, is a deprivation of property. I repeat, to have it intimately in our attention and estimation, that the doctrine of the opinion is that the owner of a “ joint mine ” may not avail of the cars accessible to his situation — cars of two carriers — only in a degree — he must yield in other degree the full advantage of his position to the owner of a “ local mine ” that the latter may have accommodation. And why? Is it the dictate of public interest? And if public interest may so dictate, may it not dictate other constituents and conditions of property, — whatever contributes to its value and is formidable to a competitor?
Position of property is as much a constituent of its value as its composition. A market for its products is as necessary as its products. There must be demand for the products and means of their supply, and both, I repeat, are attributes of property. Indeed, they constitute its value aside from its utility. Take them away or limit them and you take away or limit its value — its right and exercise — its existence.
Property has adversaries in this world and different forms excite different degrees of antagonism, but we have not yet attained to that subserviency of regulation that one owner of property must surrender the advantage of his position to every other owner, giving up what is of value to him, and what was of cost to him.
And what is the justification — the interest of the public? Is it an exercise of eminent domain? Under the fundamental law it is a condition of the exercise of eminent domain that it recompense the detriment it causes or the property it takes. This would seem so elementary as to require no exposition. If one property owner may be required to share his means of reaching markets with another property owner, why not the markets; and having customers of a definite portion of the alphabet, be required to remand the rest of it to other property owners?
One residing in this town should need no illustration of the advantage of position. One can not step out on the streets without having thrust upon him the evidence of the eager push of business to advantageous positions, recognizing their value and paying with eager competition the increase of price.
According to the doctrine of the opinion, the inducement does not exist in a coal mine, but whatever advantage of instrumentalities it has it must share in the public interest with a competitor. If so, why not all instrumen-talities — those it owns as well as those that by its position it is able to obtain.
Nor is the proposition of the opinion justified because it Is the disposition of an instrumentality of a public service corporation. I repeat, that an owner of property is entitled in the exercise of his rights and satisfaction of his needs to demand service of the carriers to which he has relation according to his rights and needs, and in the order of their requisition, and the ability of the carrier.
I concur in the reasoning of Commissioner Potter. “We may not restrict the use of transportation facilities in order to equalize mine operation. To do so would be to require discrimination in the use of equipment — not remove it. If a local mine is. at a disadvantage it is not because of a transportation problem with which we may deal. . . .”
The question in the case is made obscure by an attempt at its simplification. It seems the prompt assurance of self evidence that a mine owner with the facilities of two railroads may order such number of cars from both railroads as he may need, this being a right relative to his property, indisputably an element of its value, represented in its price and the cost to him.
I think, therefore, the decree should be affirmed.

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