:304 CHICAGO,
FEDERAL REPORTER,
vol. 4.5. & R. G. R. Co.
R. I. & P. Ry. Co.
t1. DENVER
(Circuit Court, D. Colorado. march 14,1891.) CONTRAOTS BETWEEN RAILROADS-USE OF TRAOKS AND TERMINALS.
contract between the Chicago, Rock Island & Colorado Railway Company: and the Denver & Rio Grande Railroad Company for the joint use of the railwav of the latter company between and including Denver and Pueblo construed, and held, -First, that the Chicago company has not the right to use the Denver terminals for the cars it operates and the business it does over the Union Pacific Railw,ay ; second, that the Chicago company has the right to do its own switching and handle its own freights in the joint yards, but its switching engines and laborers must work under the orders, superinten'dence, and direction of a superintendent or other officer appointed by the Denver & Rio Grande Railroad Company, and invested with the sole and absolute superintendence and control of the work in the joint yardsi third, that, under the clause of the contract excluding from ,its operation the "soops at Burnham, " the shop-grounds appurtenant to the shops are excluded. (SJ/Uabus by the OouTt.l '
In Equity.
Th(Yf1UJ,8 F. Withrow and Thomas S. Wright, for plaintiff. E. O. Wolcott and J. F'. Vaile. for defendant.
Bill for injunction.
nant property, a portion of the main line of which extends from Denver through Colorado Springs to South Pueblo, all in the state of Colorado; and the Chicago Company owns a railway which is being constructed from the western boundary of the state of Kansas, at which point it will connect with the Chicago, Kansas & Nebraska Railway, to the city of Colorado Springs, above mentioned. . "Second. The interest of both parties and of the public will b!l promoted by the establishment and operation of a through line of railway between all the points ofthe line of the railway of the Denver Company between and including Denver andSonth Pueblo, and all points on the line of railway which will be operated by the Chicago Company, and on the system of railways of which the Chicago Company will form a part. "Theretore, in consideration of the premises, and of the several covenants, promises, and agreements hereinafter set out. the parties do covenant, promise, ann agree. to and with each other, as follows: "Article 1. The Denver Company covenants, promises, and agrees to and with the Chicago Company: Section 1. It hereby lets the Chicago Company into the full, equal, joint, and perpetual possession and use of all its tracks, buildings, stations, sidings, and switches on and along its line of railway between and inclUding Denver and South Pueblo, excluding its shops at Burnflam, meaning and intending hereby to include in the description aforesaid all
On the 15th day of February, 1888, the defendant, the Denver & Rio Grande Railroad Company, and the Chicago, Rock Island & Colorado Railway Company, both Colorado corporations, entered into a contract relating to the joint use and possession of the railway of the defendant between and including Denver and Pueblo. The contract is too lengthy to be set out in full, and, besides, much of it has no b.earing on the questions now to be decided. Only those portions of it eSsential to a clear understanding of the present issues will be referred to. As much depends on the .preamble and section 1 of article 1, they are here copied: .. First. The Denver Company owns and operates a railway with appurte-
CHICAGO, R. I. & P; RY. CO. fl. DENVER & R. G. R. CO.
305
and every portion of its railway and appurtenant property between and at the points aforesaid. and all improvements and betterments thereof and additions thereto which may be jointly used by the parties. as hereinafter provided." At the time this contract was entered into, the defendant owned and was operating about 1,500 miles of railroad in the state of Colorado. The Chicago, Rock Island & Colorado Company was incorporated under the laws of Colorado on the 31st day of January, 1888, with the following among other powers: "To create. acquire by construction, lease, purchase. or otherwise, and to maintain and operate, a line or lines of railway. with appurtenant property, wbich shall extend from the point on the eastern boundary of Elbert county, and of the state of Colorado, where it shall connect with the railway of the Chicago, Kansas & Nebraska Railway Company, a corporation organized and eXisting under the laws of the state of Kansas; thence; in a south-westerly direction, by the most fl'asible route, to the city of Colorado Springs, in the county ofEI Paso, in the said state of Colorado. with a branch therefrom running in a north-westerlydirection, by t.he most feasible route, to the city of Denver, in the county of Arapahoe, in said state of Colorado, and with a further branch therefrom extending south-wellterly to the .city of Pueblo, in the county of Pueblo, in Ilaid state of Colorado, and with a branch therefrom extending from said city of CoJorado Springs northerly to said city of Denver, and with a branch .therefrom extending southerly from said city of Colorado Springs to the said city of Pueblo,-to operate exclusively, or jointly with the owner thereof, its trains over any railway which now exists or may hereafter exist, connecting said cities of Denver and Pueblo." Soon after its incorporation this company consolidated with the Chicago, Kansas & Nebraska Railway Company, a Kansas corporation bearing that name, arid the line of railway constructed under the charter of the Chicago, Rock Island & Colorado Company was built by the consolidated company under its corporate name of the Chicago, Kansas & Nebraska Railway Company. By consolidation, sale, and lease, as set out in'the plaintiff's bill, the plaintiff is entitled to all the rights of the Chicago, Rock Island & Colorado Railway Company, under the contract of that company with the defendant of February 15, 1888. The controversy between the parties hinges on the proper construction 'Of that contract. The parties are atissue upon three questions: JilirBt. Has the plaintiff the right under the contract to use the Denver terminals of the defendant for traffio which the plaintiff brings into and takes from Denver over the track of the Union Pacific Railway Company, and which has not passed, and is not routed to pass, over the joint track, via Colorado Springs? Second. Has the plaintiff the right to put its own switching engines, switching crews, and other employes in its exclusive service, into the Denver terminals, for -the transaction of the plaintiff's business exclusively? Third. What is the extent of the grounds and property excluded from the joint use by the provision of the contract which excludes from its operation the defendant's "shops at Burnham?" The plail'ltiff contends that there is no exception or qualification to the equal, joint, and .perpetual possession and use" of the property de'1cribed in article 1, §1, except those specifically mentioned in the oontraQt, which it claims are only four, viz.: The "shops at Burnham," (artiv.45F.no 5-20
306
nDERAL REPORTER,
vol. 45;
cIe 1" § 1;) the right to d,o local business: on the 3, § 4;) the right to do express business, (article:3','§'4;J and the right to haul trains of other companies over (artide 3;'§ 11.)' "1. The defendant insists that there, are other exceptions and qualifications to the full, equal; and joint ,use of the leased property, and that one of these qualifications, is that' the plaintiff is entitled' to the 1"ull,equal, and joint lise the terma.nflls at Denver for business ing over, the joint track via Oolorado Springs only; in, other words, that, under the contract, it.is not competent for the plaintiff tointroduce into the defendant ls ,tertninals in' :Denver its freight and passenger cars which arrive 'ailddepartftOtn, Denver over the road of the Union Pacific !ailway oOhe plaintiff, as the representative of the conti/iotingcptIlpany, the, Qhicago, Rock Island & Colorado Railway Oompany" forms, ll-' ponnection ,with the defendant's road at OoloradoSprings, andfot 'some ti'rne after the contract was entel-edinto all the business of theplaihtiff's' road was introduced on the 'at that : the plain,tifi' >entered i?to a JhetJ)llph RaIlway Oompany, by whIch acqQired the right'tofPP ,its, over,the track<;>'f the/last-named cCPmpany from of,I)enver, and the point where that TOad crosses the plaintiff's, to Denver;" and from that time the plaintiff trains .'to be divided ·at that point, has <mused its through and has sent the Denver traffic 'over the line of the Union Pacific into the terminals of ,the defendant in Denver;. and the, Oolorado 'Springs and Pueblo traffic over the plaintiff's line of road to OoloradoSprings, and its traffic from Denver easUs.carried ov.er the Union Pacific road to Limon, where the trains of the. plaintiff from OoloracloSprings and Denver are consolidated,and moved eastward .as solid trains. The plaintiff's contention is, that it ha!l the right to introduce its trains, run upon any line ofrailwayofits own or .anYQtner company, inito,thedefenddnt's terminals at Denver and Pueblo, and taentar upon> the joint track with its trains at any point betweentbose.plaoes. The defendant's.contention is that the contract contemplates and re<!J.,uires that the plaintiff shall iritroduce all its business onto. :tbe joint tra0kat Oolorado Springs,and not elsewhere, and that it has,no ilight to; use, the terminals at Denver except for business to and frOl:i:li.Denver over the joint track. The preamble to the contract di$closes thesituat:ion. of,:the parties at'its date. It elares that "the Denver Company owns: and operates a railway with appurtenant property, a pontion ofthe main line,Of which extends from Denver, through Oolorado SpJrings, to South Pueblo; ,* * *" and that .Clthe <iwns a railway which is being constructed from the western boundary of the state of Kansas. * * * to the city of ColoradoSprings." It is true that the Chicago Company had the right under 'its, charter tohuilil·its,road to some.other point than Oolorado Springs. It eQuId build its ,own line<to Denver and Pueblo, and quire its own terminals at those points, or: it in the'lauguageof its or jointly with the charter, acquire the right "to owner thereof, its 'trai;ns over .any now exists, or may here. i
CHICAGO, R. 1. &: P. RY. CO; t!lDENVER&: R. G. R. CO.
30T.
after exist, connecting said cities ofDenver and Pueblo."·· It is quite immaterial whether the defendant had or not knowledge that the charter of the Chioago Company authorized it to ,construct any or all of these different lines.C<Jnceding that it had such knowledge, it also knew that it was .competent for the Chicago Company to elect which of the lines it would build,and to become bound to the defendant by contract to build that particular line. It also knew that the charter of the Chicago Company expressly. em powered it to enter inte a contract ·of the .character of the one inco1'ltroversy. It finally elected to build its line to Colorado Springs, and to exercise its powers under this clause of the cbarter, and contract. for thejoint use of the defenda[}t's railway "connecting said cities of Denver and .Pueblo," instead of building a road of its own' between those points, and. acquiring its own terminals. It had not made this election wheni the contract was signed, and by a provision of the contract it was given until the 1st day of April, 1888, to do so. If, on or before that date, 'it elected to build its line "to Colorado Springs," and Jl,t and from that point" occupy the line of the Denver Compp.ny," the contract was to take effect; otherwise not. All this.is distinctly stated in section 10 of article three, which reads as follows: "Sec. 10. The Chicago Company shall, on or before the first day of April hi the year one thousand eighthul1dred and eighty-eight. notify the Denver OompHny whether or not It elects to build its line lIforesaid from said point on the· wl:'stern boundary line of the state of Kansas to said Colorado If it shall elect to build said line, it agrees to complete the same, and to 00cnpy the line. of the Denver Company. and to be bound by the terms oftbis contract, on or before the thirty-first day of lJecember in the year one thonsand eighthundred and eighty-nine. If ft' s'hall elect not to build said line, this contract shall, on the first day of April in the ypar one thousand eight become void and of no effect." hundred and By the express terms of this section, the electioJl which the Chicago Company was required to make to put the contract in force was "to build its from the western boundary orthe state of Kansas" to said it shall elect not to bhildsaid Colorado Springs," and it is declared 1ine"the shall be void. The Chicago Company undoubtedly understood that to make the 'Contract effective it must elect to build, and build its raHway to Colorado Springs. This is apparent from the terms of the notice of its election, which it gave the defendant in pursuance of the requirement of section 10 of article 3, which reads as follows: . , . "CHICAGO, March 17,1888. "To theDen'Oer & Rio Grande Railroad Company: You are hel'ebynotifled that tbeChicago,Rock Island & Colorado Railway Company elt'cls, as provided by the contract of February 15. Ull:l8,. to build its railway fl'omthe Wt"slern l,olludary of the st{lte of Kansa,; to Colorado Springs, and that it wiiJ have thesRme ready for operation. on or before the thirty-Iirst .day of lJecember in the year one thousand eight hundred· and eighty-nine,' (H:ll:l9.) . ':. ..
'.
the Chicago"Roek Island & Colorado Rail way COInpany,"., have
.
"R, R.CABLE,
A tp build l,i$railway \))" Jo any 9ther:point·thauCQloraqo. Spripgs,
308
FEDERAL REPORTER,vol. 45.
the requirements of the contract, which would thereby have "become void and of no effect." The essential thing to the life of the contract was the completion of the Chicago Company's railway to Colorado Springs, and the joint occupation of the defendant's railway was to be from that time, and by and through that physical connection. The motive of the defendant in requiring the business of the Chicago Company to be introduced onto the joint track at Colorado Springs is apparent when the method of compensating the defendant for the joint use of the leased property is considered. For such use the Chicago Company is to pay monthly: II First. An amount equal to a one-twelfth part of two and one-half per centum of the value of the property described in article 1, section 1. hereof. and which value, it Is agreed. is three million dollars: provided, that the Denver Company will fence its track from Denver to South Pueblo; will rebuild bridge No. 94 A, near Butte station, with iron and steel superstructure; will add a third rail to all side tracks and spur tracks on its. line between Denver and South Pueblo. incltisive. which are no.t now provided with a third rail; will complete the relaying of its main track from Denver to South Pueblo, inclusive, with fifty-two (52)'pound steel rail; will lay an additional track; with third rail, from Pueblo to the station on the line of said Denver Company about six (6) miles north of Pueblo; and will complete the structures ,along Its line now in process of construction,-none of which improvements and betterments named in this proviso shall be added to the principal sum upon which the Chicago Company is to pay monthly an aUlOuntequal to a one-twelfth part of two and one-half per centulq., but all other permaqent betterments and property by. the Denver Company improvements which shall be made to in pursuance of the terms of this contract, after the Chicago Companynotifies the Denver Company of its acceptance thereof, shall be added to said principal sum, and payment shall be made thereon by the Chicago Company, as herein provided. ' . . "Second. An amount equal to a one-twelft.h part of two and one-half per centum per annum upon all sums which the Denver Company shallf,rom time to time pay for the construction or acquisition of addi,tional tracks.fa,cilities, an4c\lDveniences under section 1, article 3, hereof, except at Denver and Pueblo. "'Third. An amount equillto a one-twelfth part of five per centum upon the cost of constructing, and, in addition thereto, the cost of repairing, roundhouses which the Denver Company may erect and maintain at Deliver aud South Pueblo, for the exclusive use of the Chicago Company, as provided in section 5. article I, hereof. . "Fourth. An amount equal to the proportion of the cost or expenses ally in.curred and paid during the month for keeping the railway and appurtAnantproperty described·in the first section of article 1 hereof in repair, and supplying it [the Chicago Company] with water, as .the number of wheels per mile ron by it [the Chicago Company] over said railway. or any part thereof" bears to the whole number of wheels per mile run over the same during the same period. "Fifth. An amount equal to the actual cost of the coal delivered during the fu·onth to the engines of the Chicago Company under this contract. . .. SUvth. An amou nt equal to a proportional share of the expenses actually incurred in paying proper salaries to the general superintendent and subordinate employes, including I!witchmen, telegraph operators, train dispatchers. and others. necessarily employed in the performance of the duties incidenttothe joint use and occupation of said railway, not including which pro-
CHICAGO, R. I. &: P. RY. CO. tI. DENVER &: R. G. R. CO.
309
portion shall be ascertained hl the manner provided in paragraph number four, above set out. "Seventh. amount equal to one-half of all taxes and assessments lawfully levied and actually paid during the month upon the property described in article 1, section I, hereof; that is. that portion of the rail way and appurtenant property used by the Chicago Company under this contract, excluding shops at Burnham, and equipments, facilities, and conveniences not intended for joint use by the parties hereto. If taxes shalI be assessed upon earnings made upon said railroad, the Chicago Company shall pay its proportional share, which shall be as its earnings shall be to the sum of all earnings made in the same period upon the railway used under this contract by the Chicago Company." "Eleventh. The cost of operating and maintaining alI tracks. structures, and facilities used jointly by the Denver Company and the Chicago Company shall be apportioned between said companies on a wheelage basis. If any such property is operated or maintained by the Chicago Company, it shalI receive from the Denver Company a portion of the expenses incurred in so operating and maintaining such property, which shall be as the wheelage of the Company on the railway between Denver and PuelJlo is to the entire wheelage on said railway between the points last ilforesaid. Said Den. ver Company shall receive from the Chicago COlppany such a portion of the expenses incurred by the Denver Company in operating and maintaining the railway between Denver and Pueblo operated and maintained by the Denver Company, which shall be as the entire wheelage of the Chicago Compan)' is to the wheelage OD said railway and Pueblo." Throwing the monthly into annual payments, theColorad() Company, by these provisions, agreed to pay 21 per cent. annually ()n $3,000,000, the agreed'value of the road, and the like per cent. on the cost of the constructionor acquisition of additional tracks and other conveniences and improvements made or acquired,as provided in the contract. The payment of this interest was, undoubtedly, one of the prinqipal consideratiolliJ which moved the defendant to enter into the contract.. But it was not the only one. Another important and valuable consideration was the pro!-,urtion of the expenses incident to the repair, maintenance. and operation of the railway which the Colorado Company wa!;l required to pay on a wheelage basis. These expenses are necessarily large, embracing, as they do, in the language of this contract, the expense of "keeping the railway and appurtenant property * * * in repair, * * * salaries to the general superintendent and subordinate employes, including E.witchmen, telegraph operators, train dispatchers, and others necessarily employed in the performance of the duties incident to the joint use -1lJld occupation of" the railway. The fourth clause of section 2 of article 2 fixes the rule by which these expenses are to be apportioned and l'uid. They are. to be shared by the Chicago Company in the ·proportion as the number of mile run by it over the joint track bears to the whole number of wheels per mile run over the same during the same period. The greater its wheelage the largeHhe proportion of the expenses it must pay. It is this feature of the 60ntract that made it an object of interest to the defendant to require the Chicago Company to connect with ita railway at Colorado Springs. In this way the Chi· .I':lgo Complluy is compelled, to pay wheelage on all its traffic from Colo--
310
FEDERAL 'REPORTER,
vol. 45.
,51
radbSprings toD,enver andfrpm.<Dolorado Springs th Pueblo. The rule of cO,mputation fixed by the contract is upon the wheelage passing "on the railway between Denver and rUeblo, " which necessarll'y includes the terp:linals at, those are in6identto the main line. and distinct from Wheelage for business pone intpc terminals the,main linds not contemplated by the contract, nor is it capable of separate computation. It is obvious, therefore, that jf the plaintiff may withdraw its traffic from the defendant's railway, and UBe of pusiness into thegefendant's terminals another company to introduce in Denver, the defendant ",ill be deprived Of a large source of revenue ,applica.ble ,to the paymeI;lt of the expenses mentioned, and its terminals will be burdened with business from which it derives no revenue or benefit. In the brief of the learned counsel for the plaintiff, it is said: " "For the use alone. via Coloradp Springs. the two and one half per cent. rental, plus wheelage. would be onerous upon the lessee. If. however. it, may also go by the way of enjoy the leased line on that · portion therpof' by that approach. the rental, would be less onerous, and the right to do thismlty fairly be supposed to bave been an inducement for the lessee to make the contract." ' , If the Colorado Company assttmed burdens, it also acquired some advantages. It obtained the benefitlsof. the defendant's rail way by paying to build an ina low rate oOnterest on one-halfthe,sum it would dependent line; and, if it, had built an independent line, it would have had to 'j>ay the entire' cost of maintaining, repairing', and erating the same, whereas, under the contract, it is relieved of a large share of this burden. It enjoys the use of the defendant's line, and the expenses of maintainirig, repairing, and operating it are apportioned between the twp companies in proportion to the wheelage of each·. 'rhe benefits are 'reciprocal, e.nch company., being relieved of a portim} of the expenses of maintaining and ope:rating, the road. But, whether reciprocal or not, and onerous" the two and one-half per cent. rental; 'plus wheelage'," may be, it is enough to say that the Chicago agreed toputits business on the joint track at Colorado Springs,and pay wheelageaceordingly, and that it must abide by its contract. Other'provisions of the contract abundantly support the view the court has taken of this The locomotives of the Chicago Company would necessarily require coal and water, and section 3 of article 1 provides for the flirnlshing of these by the defendant in. this language: . . "It will. qpon like requisition.fnrnish. in the sam'e manner it provides its own loconiortves on its tracks above descrihed, all watel' and coal which the Chicago Cotnpuny will nped for the operation of its trains over thp rail way of the Denver COmpany;' The compensation which shall be paid for the water suppl}' sballbe ascertained on the basis of the wheelage as, -hereinafter provided maintenanc,:! andl'epairs." . It will be observed that proviSion is made for furnishing these articles to locomotives operated over "the railway of the Denver Company" only. In section 5 of article 1 the DenverCQm,panyagrees; under certain con-
CHICAGO, R.
t.
&
11;:DENVER & R. G. R. CO.
311
ditions, to. maintain engine, and safely shelter all locomotive engines whichthe said company may have occasion to use on the railway of the Denver Company. II By section 2 .Qf,·"q.rticle.2 the Company to, pay for the use of the property beghls upon the completion of its road "to' a connection· with the railor the Denver Company at or near Colorado Springs." In sectior. 3, art. 2,' the Colorado Company covenants that "it is legally incorporated, and has power to construct, maintain, and operate a railway which will extend. .from the western boundary of the state of Kansas to Colorado Springs, in the state of Colorado." Why this covenant, and no reference to its power to constructlJ. railway to any other point? Why .covenant that it had power to" construct a road tQ GoloradoSprings if the Denver Company had no interest in that fact, and was to detive no ,benefit from it? ,.· In section 4 of article 3, there is a cllluse which plainly snows that it was not the intention of the parties that the Chicago pany should connect with the Denver Company's'line!1except at the places specificaUymentioned in the contra.ct. That clause reads afj' follows: . "But it [the Chicago Company] shall ha,ve the l:ightto and property between stations on its railway and connecting Jines, and all l'0lnts between apd inclUding' Denver and South Pueblo: 'provided, however, that if the Chicago Company shall at any time acquire, by construction. pur-ehase,or other"!ise, a railway extending not 1t'S8 than flfty milesfrofil Pueblo, it shall have the right to transport perSODS and·, property ,bet ween' on such line and D\:lDver."
. The privilege. to the Chicago. Company to make this connection at Pueblo excludes the idea that it may make's like connection at any other point; and especially at Denver.. Pueblb is one terminal of the lirie.described in the c<futraet. Denver is the'other terminaL .A special provision of the contraptauthorizing a connection at Pueblo implies that, in the provision, the right would not have existed, and that it does not exist as to Denver.' The grant in section lof article 1 to -the Chicago Compl1nyof "the full, equal, joint, and perpetual possession and use" of the leased property is not,therefore, absolute and unqualified,andthe words "as hereinafter provided "at the end of that septionqualify thewhole:section; andb!lve reference to the'provisions .of the.contract towhicb,reference has beeJl made, limiting, qualifyinp;, and explaining the granting clause. The Denver Company has always denied the right of the plaintiff to USe the Denver terminals for its Union Pacific traffic. As soon as the plaintiff commen¢ed running its cars over ·the Union Pacific Railway-, the defendant's general addressed the following dispatch to the of the plaintiff company: '. . . ' May "R. R. Oable, Ohicago, 'Ills.: I have' just seen Mr. AIlen, general super-intendent, and havenotifled,himthat, althougb ,we are iDotrequire<l,by our ,contract to. bandle oricare forypur, trains and it'quipment· ,brought·to 'Denver oyer the Union 'Paeifie line,,;we' do 80. t6D1p01"3rlly, with, the undetlltat\\lillg that the compensationfor such· service. as,a!so·. for the US8· of our traCks' by ,Buell kainSj.WiU;be.made at:anearlydate.:!) \1" , .. ! ::" ,iN s.. T.'8I1m>m" ,!
312
FEDERAL
REPORTED,
To this dispatch the plaintiff's president replied as follows: "CHICAGO, ILL., 5/11, 1889. "S. T. Smith, 9. M., Den"er: Your telegram received. Of course any service performed for us not covered by contract will be paid for by our com· pany. I come out in .Tulle. I will spend time enough with yOIl to take up all matters between liS that may require attention. Have no doubt that every· tIling can be satisfactorily arranged. R. R. CABLE." Later, Mr. Smith addressed to Mr. Cable a letter, in which he said: "The cars you are running to and from Denver by way of the Union Pacific Railway in DO event can come under the terms of the lease, and yOll have DO right to pass them through or over any part of the leased property, and have heretofore done so under promise that you would arrange as to the compen. sation therefor." This has been the attitude of the defendant on this question at all times·. Its position is justified by the terms of the contract. 2. Has the plaintiff right under the contract to put into the Denver terminals its own switching engines and switching crews and other em· ployes engaged in its exclusive service? This question arose as to the yard at Colorado Springs within two or three nlOnths after the joint use of the railway under the contract began, and was considered by the general counsel and general manager of the defendant. Their interpretation of the contract on behalf of the defendant on this point found expression in the following letter: "DENVER, COLORADO, Feb. 16, 1889. "Mr. B. B. Cable, President C.,R. I.& P. B. B., Chicago, Ill.-DEAR SIR: Referring to the differences of opinion which have arisen respecting the respective rights of the C., K. & N. R. R. Co., under the agreement of February 15, 1888, the following queries have been submitted, and, after conferring with our general counsel, have been answered as follows: * * * Q.2. Under the contract; are the C., K. & N. engines allowed to do work in Colorado Springs yard, and should all SWitching, including transfer to Midland, be done by the D. & R. G. switch engines. and does the COlorado Springs yard stand upon any other basis than those at Pueblo and Denver? A. The C., K. & N. Co. has the right, if it desires to do so, to do work in the Colorado Springs yard with its switch engine, and to do all the necessary switching for that company with its own engines; but this can only be done under the direction and instructions of the superintendent or othet designated officers of the D. & R. G. R. R. Co. The same rule applies in this as stated in query one, that all movements of engines, trains, and cars must be under .the sole direction of the superintendent or designated. officer of the D. &; R. G.. R. R. Co. There can can be no divided authority in regard to the movements 6f engines, trains, and cars. Ip this respect, the yards at Pueblo, Colorado Springs, and Denver are subject to the same principle. * * * . "Yours, truly, [Signed] "S. T. SMITH." On the' 22dof the same month Mr. Cable answered as follows: "We have acted upon the theory that the movements of trains on your tracks must be under the direction of your operating officers, that operations in the yards must co.nform to reasonable yard rules, and that in all other respects we have exclusive control of our engines and cars. If your operating officers are not willing to conform their exercise of that authority to these
CHICAGO, IL I · · P. RY. CO. 'V. DENVER & R. G. R. CO.
313
limits, our respective rights will have to be determined QY arbitration, as provided by the lease. " Some question is now raised as to the policy or practicability of permitting each company to have its own switching engines and crews in the terminals or yards to do its own work. It would undoubtedly be impracticable to have two switching crews under different supervision, working in the same yard, at the time. But the difficulty vanishes when all the movements of the switching engines and crews of both companies are under the sole and exclusive supervision and direction of a single head. The defendant in its letter to Mr. Cable concedes the plaintiff's right to do its own switching in the Colorado Springs yard, and that "in this,respect the yards at Pueblo, Colorado Springs, and Denver are subject to the same principle." The defendant rightfully claims, and the plaintiff concedes, that the movements of the switching engines and crews" must be under the sole direction of the superintendent or designated officer of the D. & R. G. R. R. Co." The letter of Mr. Smith to Mr. Cable contains a correct exposition of the contract on this point. The plaintiff has the right to do its own switching and handle its own freight in the yards at Denver, under the supervision, direction,and control of the defendant's superintendent, or other proper officer. 3. What property is excluded from the operation of the contract by the words" excluding its shops at Burnham?" These exact words occur twice in the contract,-first in section 1 of article 1, where they are used to exclude whatever they stand for from the granting clause; and, sec.md, in section 1 of article 2, where they are used to exclude whatevel they embrace as any part of the joint property on which the plaintiff is required to pay its proportion of taxes. In construing these words in this contract it is necessary to take into consideration the situation and necessities of the parties in respect to the" shops at Burnham," and the situation, condition, and uses of that property The Denver Company owned and was operating 1,500 miles of railway. Its principal shops for mILking, constructing, and repairing its locomotives, cars, machinery, and appliances, and for storing railroad cars, supplies, and materials, old and new, for its whole line of road, were situated in Denver, and known as "the shops at Burnham." For such an extended line, of road extensive shop grounds arid buildings and shop tracks and other fixtures and appliances were required. The grounds originally acquired by the Denver Company for shop purposes comprised about 40 acres. This amount ofland was foun<i to be insufficient to meet the wants and necessities of the company for this purpose, and from time to time additions were made to the grounds by purchase, and at the date of the contract the ground which had been purchased for use as' shop grounds, and se,t apart for that exclusive purpose, comprised about 60 acres. The map of the defendant's Denver property was before the parties during the negotiations that led up to the contract, on which the shop grounds were stated to embrace 40 acres, and,that was the extent of· them when that map was made; but by subsequent purchases they have been extended, until at the date of the contract they embraced 60 acres. There is some
314
J'EDERAL REPORTER,
conflict in the testimony as to what took place between the parties in reference to this matter. Some witnesses have probably forgotten what othertv r.ecollect. But I thInk it :highly probable that the boundaries of the shop grounds at Burnham, as they stood at tb,e date of the contract, were pointed out or outlined on one or more of the maps which the of· ficersof :bothcompanies had before them at and before the time the contract was' entered into. His ,quite certain that both parties understood that the expression" the shops at Burnham" was not to be restrictedtothe shop buildings only. But the decision of this question is not r{'sted on the parol testimony about the understanding of the parties to the extent of the grounds appurtenlmt to, the shops. ' Nor.is the term" railroad shops," in the connection in which it is used in this contract, and in the light of the surrounding conditions and cireumstances, which must be taken into consideration in construing the contract, a term ofartthat requires the tes· timoily. of experts to explain its meaning to the court. But, if it is, the weight of the expert testimony is to the effect that railroad men would understand the term "railroad shops'" included all the tracks and grounds set apart and used for shop purposes. In railroad parlance, "railroad shops," when used in the sense:ofthat term in this contract, include the shop grounds without which mereshbp buildings would be oflittle or no utility or value for railroad purposes. It is obvious that the term. "railroad, shops" includes much more than would be included in the term "shoe shop" or the word "shop" means abuilding inside of which:a mechanic carries on his work; but by far the greater portion of all principal railroad shops, such as the parties to this contract had in contemplation; are without a covering. The plaintiff seeks to construe this ex,ception as though it read" the buildings on the shop grounds." But that-would be to change its whole meaning. When critically read, the contract leaves no room for doubt on this question. The .langtiageof the contract descriptive oithe property affected by it is extremely general and comprehensive.' Three millions of dollars' worth ,of property is in half a dozen lines, in the midst of which is theseritence, shops at Burriham." 'fhe property 'excepted from the grant is described in the same general and comprehensive terms that are used in describing the property that is granted. The property covered by the contract, including that excluded from its operation, is described in these general terms, viz.: ".Its tracks. bUildings. stations, sidings. and switChes on and along its lint! of railway between and including'Denver and SonthPneblo, excluding its shops at Burnham. meaning and intending thereby to include in the description ,aforesaid aUaud every portion of its railway and appurtenant property between and at .' '. It will be observed that neither the words "real property" nor "real are anywhere used in describing any estate "nor "lands" nor:" portion of the property covered by the granting clause of the contract, but these general words only, . "Its tracks, buildings, stations, sid. ings, and switches on and along its line of railway, * * * and ap-
· WALDRON V.· WALDRON.
315
purtenant property." Under the terms of this grant, the only ground upon which the plaintiff Can claim a. jointinterest in 'the shop grounds, or any other parcelof land,is that it isl'appurtenant!'tQ the thing or things specifically granted. But the rule of the contract, and which is a rule of.law independently of the contract, by which appurtenant property passes, applies as well to the property excepted from the grant as to that granted; and the question comes to this: Are the shop grounds "appurtenant" to the shops, or to something else? It is clear that shop grounds at. Burnham, used for shop purposes; and not intended for any other use,are "appurtenant" to "the shops at Burnham," and not to the "tracks, buildings, sidings, and switches" granted to the Colorado Company. No piece of .property could be more "appurtenant" to another than the shop grounds are to the shops, and to detach the shop from the shops, and declare them an "appurtenance" to the track, or some building, siding, or switch, in connection with which they were never designed to be used, and to the proper use of which they are not essential,would be extremely unreasonable, and contrary to the plain meaning of the contract. It seems that a subordinate agent of the defendant in listing the property for taxation distinguished between shops and yards, and that the plaintiff haa been charged with and paid onehalf of the taxes on some portion of the shop grounds. The listing was done in conformity, or supposed conformity, to the revenue laws of Colorado, and had no reference to the rights of the parties under the contract, of which the agent, who attended to the taxes, had no knowledge. No estoppel arises from anything that took place about the taxes. The defen:1ant, from the beginning, has. claimed that the shop grounds were excluded from the contract. A great deal of testimony has been taken in the case, very little of which is competent, and it has not been referred to for that reason. If competent, it would tend to support the conclusion of. the court.
WALDRON 'D. WALDRON. {C'ltrC'll:lt Court, N. D.
ntinm...
February 17,1890.}
L
HUSBAND AND WIFE-AOTION POR ALIENATION 011' AlI'!'ECTION.
In an action by a wife against another woman for alienating her husband's atreotions, and causing him to abandon her, plaintiff cannot recover unless it appears by a preponderance of evidence that the alienation of affection and abandonment was caused by defendant knowinl!'ly, and by direct and active interference. In such action, the complaint and eVidence, in a suit for divorce previously obtained by plaintiff against her husband, are inadmissible.
9.
SAME-PREVIOUS DIVOROE-EvIDENCE.
&. SAME-DAMAGES.
The measure of damages in such action is based on the actnal injUry to plaintiff by the 10s8 of ber husband's affection and support, and ontbe pecuniary circumstances of defendant; and, if the injury was inflicted wantonly and maliciously, exemplary damages may be awarded.