of the case; as, unless some specific person has been illjured, there would be no right of action. But ina case like this,whtJl'e a right of action rests in a non-negotiable contract or l,'ight of action, 'exPress or implied, there is no necessity, as a matter of pleading, for naming the partyequitably or beneficially in the suit, and the sU9h p.erson's name upon the reoordia,really Il:0 part of the case, has J;io, effect except to: act as demand is not owned by the plaintiff. The motion to remand is therefore overruled.
P. :Ry.Co'. and others.
OF NEW YORK, (CITY
and another tl. WABASH, ST. L. de ST. LoUIS and another, Inter.
.', (Oircuit Oourt, E. D. Mi8souri.
A .single sentence of a contract should not be construed as if standing alone, but with reference to. the context.
SAME-'-PtmLIO POLICy-RAILROAD COMPANIES.
Railroads perform a quasi public service, and, so far 'as vested property-interests are not impaired, such construction should be given to all contracts made by them as will make them most fully subserve the interests and weI· fare of the general public; . . . . 'l'he law favors compromises. and upholds them as considerations of the COVel18l1ts of the compromil;lingparties. 2
A party who bas been paid for a privilege cannot resist its enforcement on :the mere ground that he cannot compel the other party to continue in its en· joymentoWhere a court of equity takes jUrisdiction of a controversy, it is bound to continue 'that jurisdiction up to the final determination of the entire contro· versy.
EQUITY-JURISDICTION' . RAILROAD COMPANIES'-
SPECIFIC PERFORMANCE RIGHT OF WAY.
Where a railroad company binds itself by contract to allow other companies to use its right of way under suoh reasonable regulations and terms as mar be agreed, upon by such companies, - ,thereafter refuses to recognize the nghi .and ;; '
1 EdIted by Benj. F. Rex. Esq., of the St. Louis bar; tThelaw the settlement of disputed matters without recourse to litigation, Hart v, Gould, (Mich.) 28 N. W.Rep. 831; Wellsv. Neff, (Or,) 12 Pac. Rep. 84. Such settlement ofclaims asserted in good faith, the validity of Which has been doubted, constitutes a valid compromise which will not be disturbed in the absence of fraud, undue advantage, or mistake, Shipman v. District of Collimbia;·7 Sup. Ct. Rep. 134 ; Stimpson v. ,(¥aflS.) 6 N..E. Rep. 705;. AdaJPs v. Adams, O:owa,) :So N.. W. Rep. 795.; .Zimmer (Wis.) 29 N. W. Rep. 228, ill'Jd'note; and. which furili'shes a sufficient considerationfor the mutual promises of the parties, Lipsmeier v, Vehslage, ante, 175, and note; Dllohljo,m:v. (lriswold, (N. Y.) a N.E. Rep. 76; Ada.J;U8v. Adams, (Iowa,) 30 N. W. Rep. 795.
'eo. V.WABAsH, ST" L. &:
P. RY. CO.
of anotherooml1ltuyto use ill1clt rig-ht way UPOIl a court bf equity . has. power to e;nforce determine theamQllllt of consideration, and the regiIlati0n.s.
8. mDEFINITE A8TO DETAILS. " . . . ,'Wherea right is absolutely contracted for. but the details are left un', settled, either because they cannot be determined at the time the contract ill m!'ode, or because the ch",ngingcondition of l'.ttairs indicates t4at details mUS,the.subject to modification, and should therefore be left to settlement by agreement or decree at' the time the right may be insisted upon. a court of equity will not hold the contract incomplete, when: called upon to enforce it, if the details are of a nature which it can properly fix and settle, but will determine the right. and prescribe and settle the details. The decree should be subject to modificationll. however. . 9. OF WAy-CQMjPENBATION FOR USE. The. defendant company having contracted to allow.another company to use its right Of way and track upon reasonable terms, held, that such latter company desiring to use such right of way and track jointly with the owner should. under ,the circumstances of ,this case. pay interest on half their value, and that the share, of the expenses of keeping up the track to be paid by each company shOUld be fixed upon a 'wheelage basis. 10. :MORTGAGE-NoTICE-REFERENCE IN RECORDED DEED TO ONE NOT RE-
Wl1ere.adeedconveying aright of way to a railroadcoIDpany recited that it was executed in pursuance of a contract between the grantor and grantee. and stated, towards its close, that the conveyances "of the said right of way in the deed mentioned Il,re made subject to the terms and conditions upon the same were granted, to t4e party of the first part, " and the contract referred to was not recorded. but another contract of eyen date therewith, reo ferring to it. and limiting the grantor's was recorded. held, that. perBons to whom the grantee's successor mortgaged its. road are chargeable with of the terms and conditions of said contractB, and are bound thereby. 11. RAJt,ROAD COMPANIES-RIGHT OF WAY, DEFINED-CONSTRUCTION OF CONTRACT·.
The trip'lI,rtite agreement of August 11. 1875, between the Forest park commissioners, the St. Louis County Railroad Company, and the St. LOUIS, Kansall City & Northern Railroad Company, construed, in connection with the contract of even date therewith between the last two parties; and held (1) to form a part oithe latter contract; (2) to be upon sufficient consideration. and binding; (1I) to have bound St'-Louis, Kansas City & Northern Railroad Company to 'permit other railroads to use its right of way and track. not only through Forest park. and the non-contiguous tracts, through which the St. Louis County Railroad COIl1panyhad a rie;ht of way, but also through all tracts intervening between said park and the UnIon depot, in St. Louis, through which the St. Louis, Kansas City & Northern Railroad Company might thereafter obtain a right of way from other parties; (4) to have meant by the term"right of way" tbe lItrip of land upon which a railroad company constructs jts roadbed; (5) to have entitled the St. Louis. Kansas City & Northern Railroad Company, and its successors. to the first right to use its right .of way, not limited to its necessities. but as broad as its conveniepces, and-to haye entitled other roads. subject to such prior right, to the use of said right of way, including, jf necessary, the owner's tracks.
In Equity. Noble &: Orrick and Dyer, Leec!c Ellis, for St. Louis, K. C. & C. R. Co. Leverett Bell, for City of 'St. Louis. Wager Swayne, Well8 H. Blodgett, Warwick Hough, and H. S. Priest, for defendants. :'
BREW'ltrR,J. The intervenors represent that the Wabash road is in the possession of receivers appointed by this court, and that such road is the owner of a right of way passing through Forest park, and then easterly
to the Union depot, in the city of St. Louis. They further represent that said road holds said right of way subject to use by other railroads, upon reasonable terms; and ..seek, through their petition ofintervention, an. order from this court directing the receivers to permit the St.Louis, Karisas & Colorado Railroad Company, one of the petitioners, to run ,and engines the tracks of tne·Waoa.sh"u.pon said right of way. They base this claim, not upon any reserved right in the state tq of the power of eminent domain,but upon two conmade on the eleventh day of August, 1875.. We have therefore noinquiry to make as to the power of the state to condemn a partial use of ail existing railroad track inhehalf of a new railroad company. No condemnation is here' sought, nor proffer made of any condemnation money. Neither have we .any inquiry as to the power of the state to compel one railroad permit the use of its right of way by another. The petitioners rest their claim alone on the contracts, and the question is therefo.re n.arrowed to the matter of a contract right. While this may narrow, it doef:; not belittle, the question; nor can we be insensible that important rights and interests are involved in the correct solution of this question. We have, on the one hand, the city of St. Louis, "-a large comrnercia.+ city,-'anxious,:t<> do everything that it may to further and extend its commercialjnterests, and urging that a new railroad company may have access to the center of passenger business in the city, and the new company itself,' projecting and building a line westward through. the state of Missouri,. pressing .in like manner for such access; and, on the other hand, a large corporation, with extensive lines, which has purchased and paid for: a most valuable right of way, admitting ittollie Union depot of the city, eager to protect its property interests, and to preserve its right of way free for its own use,,....-anxious also, doubtless,}o prevent that competition which a new road occasions. ,,:fhe parties on both sides are.earnest and strenuous, for the interests to be affected by the decision are important. We are fully senf:;ible of this importance, and havegiven the inatter the most careful consideration;." . . The facts upon which the claims·of the petitioners are based are these: In St. Louis County Railroad Company was organized for the purpose of building a narrow-guage road from the city of St. Louis to Creve Oreur, a distance of about16miles.. Its proposed route crossed diagonallyfhe north-eastern part of what is na:W Forest park. That ground at the time belonged to one W. D. Griswold, and from him, the same year, the railroad obtained a deed to the right of way. In 1872 the general assembly passed an act entitled"An act to establish Forest park." By section 5 of the act the control and government of the park was placedin the hands of. a boardqf commissioners. These commissioners, in the fall of 1872, made an agreement with the County Railroad, changing the location of the right of way granted by Griswold, and enlarging.its width from.. 40, to 7,0£eet. In the willterof 1872 .and 1873, thesUpl'elne court of Missouri decided that the: act t.o establish Forest park'was Ullconstitution8,1 and void. Of course, with the downfall of
ST. L. &: P. RY. CO.
the act, went all contracts jllade by the park commissioners.The title of the County Railroad to the right of way granted by 'Griswold remaine.d as it originally existed, unaffected by the attempted agreement with the park commissioners. In 1874· the general assembly passed a new act to establish Forest park. This act was adjudged valid. By it, also, government and control of the park was vested in a board of commissioners. .In section third,which provided for the vesting of the title to the property in the people of the county by general condemnation proceedings, was inserted ·this proviso: . .
"Provided, that nothing in this act shall prevent the St. Louis County Rail. road from using and.occupying a right of way of the width of not more than seventy feet through the north-eastern portion of said Forest park; the said railroad lilhall.;only enter the park through Duncan's subdivision on the east side of 'said park,and, running westwardly on the northern side of the River Des Peres, shall pass out of said park at a point on the northern line thereof, east of Union, avenue; and provided, further, that no switch or siding shall be constructed by said railroad company in said park. nor shall more than one depot be established in said park, and that shall be for passengers only; and providl3li,fur,ther, that the grade of said railroad, as far as the same runs through Forest park. shall be approved by iiaid Forest park commissioners."
The route mentioned in this proviso departs from the route named in the Griswold deed, and comes more closely to that named in the agreement of lS72 between the County road and the park commissioners. In addition to this right of way through the park, the County road proceeded to acquire title to certain tracts and parcels of ground along its route from the eastern boundary of Forest park to the Union depot. These tracts were not contiguous so as to form a continuous right of way, but were separate, and with much intervening space between. The St.Louis, Kansas City & Northern was the owner of a standardguage raih-oad extending from St. Louis to Kansas City, with a branch running northerly from Moberly. It had for years entered St. Louis along the levee, reaching. the city on the north side. Desiring to enter the Union depot, it proceeded to layoff a line from Ferguson, which ran parallel,. or nearly so, with the line of the County Railr9ad through the park, and thence easterly to the Union depot. Such was the situation when the contracts which are the basis of the present claim were executed. The first of these contracts'was between the St. Louis County Railroad, party of the first part, and the St. Louis, Kansas City & Northern Railroad, party of the second part,-companies which, for convenience hereafter, may be called respectively the County Company and the Kansas Company, By this contract the County Company agreed to convey to the Kansas Company an undivided one-half interest in the right of way through Forest park, and a strip 28 feet in width through the several tracts owned. by it, between the eastern line of Forest'park alld'thewestern limit of the city, and a strip 30 feet in width through the various tracts owned! by it eastward from those limits to the Union depot; In consideration. of this the Kansas road was to pay $125,000. This con-
tract further pro\Tided 'that the right of way through the park, as well as cut contemplated just east ofthepark,were to be used in 'commOn' by the two roads. ,Beyond that,eastwardly to the depot, the contemplation was of two separate rights of way,with independent tracks with a further provision that at two places, unless the .for each County rQad could obtll.in the use of the street, it should be permitted to put a third· rail on the·right ofway of the Kansas road. It was further provided. that the Kansas road should construct and maintain the road-bedthJ:!ough the park, and the tunnel and cut, hereinbefore referred to; also that the County Company should, within two years, pay to the Kansas Company of the cost of this construction; and that, on failure thereof, it should forfeit all right and interest in said right of way, and be forever excluded therefrom. The second contract, made the same day, was what is known as the (( tripartite agreement;" the parties to it· being the commissioners of Forest park, party of the first part, the County Company, party of the second part,and the Kansas Company, party of the third part. Each of these contracts refers to the other, and, while the tripartite agreement was executed after the other, they are so connected as properly to be considered parts and parcels of one contract. This tripartite agreement recited that "said Forest park commissioners; in consideration of the relinquishments, agreements, and stipUlations hereinafter contained on the part of said party of the second part, do hereby accept and. approve the line and grade of said railroad as laid down and described upon the accompanying plat and profile hereto attached, and forming part of this agreement; and said line and grade, in case there is no forfeiture of this agreement, is hereby fixed as the sole and finally established right of way to which said party of the second part is entitled by statute, or otherwise, through said park, or any part thereof; and the width of said right of way, as established by'statute, is hereby reduced from seventy (70) feet. and fixed at forty-two (42) feet, between its outer points." Then that the County road, in consideration thereof, relinq\iished 28 feet off the 70 feet established by statute for its right of way through Forest park; with the proviso that, in case the right of way described and established should not be promptly placed at the disposal of the County road, this agreement should be set aside, and become null and void. It then, in eight successive paragraphs, provided for the manner of constructing the road-bed through the park by the county road, and also for the building of the depot outside the right of way, but immediately adjoining thereto. The ninth paragraph reads as follows: "Said party of the second part shall permit. under such reasonable regulations and terms as may be agreed upon, other railroads to use its right of way through the park, and up to the terminus of its road in the city of St. Louis, upon such terms, and for l'Iucl! fai;r and eqUitable compensation, to be paid to it therefor. asmay be agreed upon by such companies." The tenth paragraph is an admission by the County road that its right of way is not exclusive, and that this agreement is not to be construed
CENTRAl, TRUST CO. tI. WABASH, ST. L. &: P. RY. CO.
as limiting or impairing the right of the park commissioners to grant another right ofway to anyother'raiIroad company.' The twelfth paragraph is as follows: . " And whereas, for the purpose of enabling the party of the third part to reach the Union depot of St. Louis, Missouri, an amiCl\ble agreement and arrangementlor a right of way outside of and through said Forest park has been. made 8.nd entered into by and between the parties of the second and third parts, and in pursuance thereof the parties of the second aud third parts are to enter upon and enjoy the right of way, and all the rights, privileges, immllnit.ies,powers, improvements, and property belonging to, or vested in, or that may belong to, or vest in, the pai'tyof the second part, in common, in, upon, and' through said park, under certain regulations, terms, and conditions agreed upon by and between said parties therein; and whereas, the party of the third part, in further pursuance of said agrJ¥lmel,lt, is. about to construct, maintain, and operate a railroad, in, upon, and through said park, at great expeI).se, and to engage in other great outlays, and to assume other burdens 811dresponsibilities, to be of advantage to said third party, through the 'continued enjoyment of said right of way and other rights, privileges. powers, franchises, immunities, improvements, and property in, upon, and through said park: now, therefore, in view of the premises, and as inducements to said party of the third part to proceed as intended, the party of the first part does hereby grant and convey unto, and. license and permit, the said party of the third part, its successors and assigns, to have, hold, use, and enjoy said right of way, in, upon, and through said park, in common with,and to be held and enjoyed jointly with, said party 'of the second part, and 'its assigns, on the terms of the said contract between them, and under the same terms and Conditions as are hereby and hereinbefore imposed upon said party of the second part, and which are hereby assumed by said party of the third part as to improvements, except as to building a depot and switch in said park, which the party of the second part is to do itself; or, in case said party of the second parill its successo'rs or assigns, should forfeit its said rights, privileges, and franChises in, upon, and said park, be excluded from said park, but shall, with its successors and assigns, continue to have, maintain, and enjoy all of said rights, privileges, immunities, franchises, improvements, and property on the terms hereinbefore set forth, continuously and forever." The thirteenth paragraph provides th.at the Kansas road shall have no depot in the park. The fourteenth paragraph, so far as it is material, is as follows: "Now. therefore, in consideration thereof, and of the agreement of the party of the third pal't herein, the party of the first part herein .accepts the agreement .and contract of the party of the third part herein til execute, perform, and comply with all of the terms, provisions, and things. herein mentioned to be done, performed, orcomplied with, as to said improvements, except as aforesaid, by the party of the second part hereto, so fal' as assumed as aforesaid, releasing it therefrom, and in consideration thereof the party of the third part hereto covenants anll agrees with the other ,parties hereto that it will. in lieu and stead of the party of the second part hereto, do, perform, and comply with all the terms and prOVisions, matters and things, herein expressed, to be done, performed, or complied with by said party of the second part, as to said improvements, except as aforesaid, subject to the terms and conditions in said agreement -of even date herewith contained; and it is
. FEDERAL REPORTER.
hl'lreby expressly cO'VE\nanted; ancI agreed that a compliance il:lY the party of the third for orior and the party,of ,the second part jointly, in the construction of said' railroad in, upon, and through said park, tunnel, and cut, in accordance with the terms of this agreement, shall be taken and acoopted QS la: performance of :ttie cond:itions imposed upon' said .partyof the second part; 'and it is expresslyoovenanted and agreed that all and 'every part of the Work. its kirid. deseription,'and extent, to beperfOl'tIiedbyeither of sMdpartieB'of the second or thirdpRrts, is hermnalJove expressed, anll neither ofllQid }lllirties Shall be held or requi;red to do or perform any other or further work aildoooditions than thOse hereby definitely set forth." .. be 'bY. the piilthparagraph the County road agreed to permit, the use of its right of way by other railroads; Whether aHkeobligation was assumed by:the Kansas road depends upon the last sentence' inthe twelfthparagl/aph, which purports to grant to the Kap.sas'r()ad t;be right to ocpupy and"enjoy the right oTway through the park joiiit').y with'the Coulltyroad,"on the terms of the said contract betweenthem,llnd.u.nder the sa,me terms and conditions as, are hereby and ,hereinbefore; imposed upon said party of the second part, and which are hereby assumed by said party of the third part as to improvements, except as'to building depot 'and switch in said park, which the party of the second'part is to do " ' " ,It that the meaning of this language is not perfectly clear. ..It is claimed by. the .defendants that the words, "as to improvements,-except as to buildings, '1 etc., qualify not only diately preceding clause,'commencing"and'which are hereby assumed," but also the one prior, commencing "and under the same terms and conditions;" and tQerefore that theternls and conditions afl to improvements are alone cast upon the road. This would make the two cJauses but a. Eiingle compound one, qualified by the following .relative clause "a§3 to improvemellts," etc. As against.this, it must be observed that, grammatically, a Tellttiveclause generally· qualifies its immediate antecedent,atldthereforeirithis case would refer simply to that clause whichpl'ovides. for the assumption by the Kansas road. Tfhis natural gnimmatical construction is strengthened by the punctuation,-a comma after the, words" party of the second part," and none after the words 'tparty 'of 'the third part," which seems to separate the entire firstclause from the second and its qualifying terms. I know that the matter of punctuation is never relied upon to defeat the obvious intent; but, when the meaning is doubtful, the punctuation is certainly a matter tending to throw light upon it. Further,tpere 'are not simply two,but really three, antecedent clauses; the. first one being, "the terms of the said contract between therri;" that is, the two railroad companies. Very clearly this qualifying clause does not refer to that, a,nd therefore it should not be held to qualify the second, unless the obvious intent compels such construction. It is objected clause commencing "and which are hereby assumed," is, under this' construction, superfluous. I think not. These improvements called for the expenditure of money, and the idea seemed to be that theK;ansas road should not only hold its rights upon certain condi-
WABASH, ST. L. & P. RY. CO.
tions, but that, as to those involving the expenditure of money, it should expressly assume the performance. There is a manifest difference between a conveyance subject,to a mortgage and a conveyance in which the grantee assumes the payment of the mortgage. This distinction eviused. dently dictated the form Again,itis insisted that,by the fourteenth paragraph, the parties expressly declareq what they.meant'by the·terms and conditions imposed CO,ttI1ty road;. for, in. next to the last sentence quoted, it is upon vided that I"a compliance by the party of the third part for itself, or for itself the party of the second part jointly, in the construction of said railroadiin, upon, and through said park, tunnel, and 'cut, in accordance with the terms of this agreertierit,shall be taken and accepted as ance of the conditions imposed upon said party of the second part." But this langpage, which,while'taken by itself, seettls very broad, must be construed irireference to the context. From the opening language of the it appears that the parties were stipulating concerning the matter ofirnprovements alone, audin reference to the party by whom said improvements should be made; and when in this sentence' certain work bY the Kansas road is declared to be taken and accepted as a performance of the conditions imposed upon the County rmid, it must be taken as simply to the conditions in respect to improvements. This construction is strengthened by the language following this sentence, in which it is said that neither of said parties-neither the Countyroad nor the Kansas road-"shall be held or required to do or perform any otheror further work and cOliditions than those hereby definitely setforth." Certainly it' was not meant by this to nullify the provisions of the ninth paragraph, or release the County road from the stipulation therein tained.· Making the fOl;J.rteenth paragraph refer simply to the matter of improvements, as indicated by its opening sentence, it becomes consi8tent and harmonious with the balance of the agreement. Further, ,it is insisted that, if it was the intent of the parties that such be assumed by the Kansas road, the an important obligation language irnposing it would have been more definite, precise, and clear, and that the very uncertainty of this language precludes the idea that it was the. intent. of the parties that this obligation should be cast upon the Kansas road. Counsel speak of it as " a j:!;hastly blunder," and argue that, from language of such dOUbtful import, no imputation of such a blunder ougnt to be castupoil the ,then representatives of the Kansas road. Probably at that time-more than 10 years ago""--the assumption of such an obligation did ilotseem to be a matter of serious moment. Indeed, the very language in' which the ninth paragraph is couched, and by whicb., unquestionably suchan obligation was intended to be Cast upon. the County road, lacks, as we shall hereafter see, the precision, certainty, 'and fullness'which, in view of the present hnportance of such a stipulation, would be expe9ted. . ' .' .' Again, it is insisted that there was no consideration for this stipti1a::tion orr the part of the Kansas road. It is urged that the County rolid -had,'by virtue ofits deed from Griswold, and theaet establishing Forest
title toll. right of way, 70 feet in width, through the beyond .the possibility of interference by the park commis· sioner:Sj: thlj.t the only power left with the park commissioners was in regradej that the County road had, under the statutes, a right to convey any or all of such right,of way to the Kansas road, and that, baving)·,allphright. of waY,l Itn.attempt by the park commissioners to impose t4is . was, unauthorized j that the assumption. by the Kanwithout consideration, and ,not binding·. ' fP this it may be replied that the park commissiQners accepted and appr(>,ved the proposed grade; tlul.t by the last qlause of the tripartite agreement they agreed to build anQ.:maintain certain arched entrances and exits from the park, and that,s,s ,a matter of fact, they did thereafter spend many thousand dollars ill such workj and, finally, that the agreement indicates on its face that was made as a. compromise of certain claims on the part of the respe<ve, parties. 'J;'he law favors compron"J.jses,--:-upholds them as of thecoveplloqts of the compromising parties. The park claimed t9'" :l1gptto grant a right of way through tllepark. ,'By the, terms oOllis.tripartite agreemeIlt, they conveyed this right, and appr.oyed the proposed, grade, and contracted to do work along that line., for this, stipulation. While I concede the language isnp;tentirely perspicuous, y.et I think the true constr,uotion ill that the I\ansas roauassumed the stipulation of the considera.tion, and therefore a biIldlg.sgpulatipn uppn . . l?or furWer ,Q.rg?menttending to show that this is the true constructiOll;,. and that there was ,suijicient consideratioIl , I, refer to the elaborate of the special in this cause. A solutipn this question op.ly,opens the door to others, some of whicll are, even Oloreewparrassing. and difficult of solution. 1t is insisted that by the railroad company agreed. to permit the 1,lse oOtll rigllt of way., !l:nq,qidJ;lot agree to permit the. use of its track qr, that th!" roa4 .should not be bound, tbl'lrefore, beyond .of its obligation. Also that was not one the landj that it.bound only the pl1,1'ty.assuming it, as a merely.persollal covenant; and while, therefore, .00. the Kansas roa4, the Wabash Company, into which it was cpnsplidated, it the mortgagees, who take as purchasers, and as purchasers withollt;,,llCftice.Further, that the use by other railroad companies stipulated fOI\ wasJ;o be only on such cOmpensation as should be agreed upon by. the, and that, i,n the absence of such agreement by the parties, DO pow.er. to determine the amount of compensation, that the contract is one which in . its .not susceptible of;.specific enforcement, because the duties reqtlired,l?y. ;it,apd which sought to be enforced, are of a continuous character, and require the personal skill and cultivated judgment of the defepdantroad j and therefore the mattercannot be disposed of but will require the permanent retention of the case, $Upel1vision by the court. Still, again, it is insisted that
CENTRAL TRUST .00.,11. -WABASH,
& P. RY. CO.
there -is 'no mutuality' in the 'contract, and that therefore it is one that courts will not speoificallyenforce; and; finally,:that, ifalltliese objections fail, the amount of compensation reported by the master is not fair and adequate, but should be largely inexcess of that amount. Of these in their order. The language of the ninth paragraph, under which,as before noticed, must claim, is that the party of the second part shall permit other railroads to use its "right of way." Now, the term "right of way" has a twofold signification,-it sometimes is used to describe a right belonging to a party, a,right ofpassage over any tract; and it is also used to describe that stl'ipofland which railroad companies take upon which to construct their road-bed. Obviously, in this paragraph, it is used in the IatWr sense. Through both of these contracts the terms" right of way," "track," and "road-bed" frequently appear, and in all cases the term "tight of way" is used as descriptive of the strip above referred to. Notably, in the fifth paragraph, is the distinction between the "right of way" and the "track" disclosed, in which it IS provided that tbe depot shall be wholly outside of the right of way, but immediately adjoiiling the track. Now, the right of way through the patk, as given by the Griswold deed, was 40 feet; as fixed by the contract with the Forest Park commissioners, was 70 feet; and by this present contract, 42 feet. So the County road conveyEld to the Kansas road,outside of the park, a. strip either 30 or 28 feet in width for its right otway. My thought, at first, was that the intervenors could only claim a right to use so much of this right of way as was not, in fact, occupied by the track of the Wabash, and that all that wlis intended by this ninth paragraph was to mit other-railroad companies to occupy and use so rr.uch of the Kansas road's right of way as it did not itself occupy and use; but, after reflecHonon. the arguments6f counsel, I have been led, to the conviction that this was too narrow a construction, and was not the real intent of the parties. The master. in his report, shows that the entire right of way is occupied by tracks and sidings, So that there is no room for another and independent track; and as there is nothing to show that this occupationhas not been made in good faith,and to supply the needs of the Wabash CompanY', if my first interpretation had been correct, the intervenors would plainly be without any rights. I think, however, the true construction is this: that the Kansas Company was to have the first right,-a. right not limited to its necessities, but as broad as its convenience. Subject, and only subjeot, to suchpriof right, other companies were to have the use of the of way, and if the respondent's business compelled the occupation by its tracks or sidings of the entire right of waY'; but the convenience ,of its business would permit the use of those tracks and sidings by' another road, then such other road would be titled to the use of both the right of way and the tracks and: sidings. ThisooDstruction is, I think, in accordance with the obvious intent of the ',parties, who were contracting for' general' rights, and not fiXing the speci'fi6 details. '
, , FEDERAL nEP-ORTER.
With reference ,to, the next matter, it is not seriously contended that the obligations assumed by Kansas rOl\d are not also binding on the Wabash, because the latter is a mete consolidation olthe fonner with other companies; but the contention is that the mortgagees take as purchasers, free from any burdens which do not run with the land, or of Which they do not have either actual or constructive notice. On the same. day on which these contracts were executed the County road executed a deed to the Kansas road of the undivided half of the right of way through the park, and of the separate portions of the various parcels of ground <eastward, to the Union depot, which deed was recorded two days thereafter. This deed recites that it is executed "in pursuance of the terms of a certaincontractm!!-de and executed by and between, the parties of: the first and second parts 'hereto, and dated August 11, A. D. 1875,ano hi; full [satisfaction of so much of said contr/lct as relates to the conveyance of certain pieces of land and t of way to party of the second part .by. said party of the firet ,part." Also, towards tne, close of half of all the instrument, after providing fOr,a transfer of right of wat,and all other rights and privileges, franchises,. powers, and immunities owned by or vested in the party of the first part, in, through, or upon Forest park, it has these words: "All of which conveyances of subject to the the said right of way in this deed, mentioned are terms andiconditions upon which the Same were granted to the party of the first part. !l Now, the tripartite contract was recorded prior to the consolidation of the Kansas road with the Wabash, and prior to the issue of the mortgages referred to. There being express reference, in the deed from the County ,road to the Kansas road, to th,e contract in pursuance of which the deed is made, and au express declaration that the conveyances are made subject to the terms and conditions upon which the grantor received them, it seems to me that there is enough to cast upon even a bonafidepurchaser.noticeofthe terms and condition!3 ofthese COlltracts. Itis argued with great force,however, by counsel for the respondents,that even if the purchasers were charged with notice of these terms and conditions, as attaching to the lands described in the de inld, asmuch as the Kansas road obtained a large portion of its right of way between Fpl'estpark and the Union, depot from other sources, it took these portions ftee from any burden cast upon the lands specifically conveyed 'byihe County road. "Can it be," he says, "thata condition in a deed of a few feet oftbe right of way, in a long lille ofthree hundred miles, casts a burden on the entire line, to be assumed by every succeeding purchaser?" I might answer this extreme case by a reverse question: Can it be possible that a condition attached, to substantially the entire right of way of this long line ohoad can bedefeated by the fact that some few feet have been acquired by a deed free from such condition? But these extreme cases do not cOPBtitute the practicalmatter us. Here and the' County road had an' incomplete right of way through :the to .th Union depot. A shate of this incomplete right of wa.y it <;lonveyed i to the Kansas road, subject to certain conditions. Can ,it be that $e,
CENTRAT, TRUST CO. ".WABASH, ST. L. '" P. BY. CO.
.completi()):d)cythe Kansasroad oUbis right ofway, by purchase onn;. terveningand destroys the entire value of the conditions? Looking .at this matter in a practical way, and. from a reasonable stand.. point, 1 think the answer to this question must be in the negative. Pa"''lsing to tb,e next matter, the ninth paragraph contemplates that the conditions and: for use should be determined by. personal agreement. . As there has been no such personal agreement, counsel deny \ the power of the court to interfere, and say that any interference would be the making: of· a new contract. They refer. tcdhe familiar cases in .whichpl1rties,in their contract, haye stipulated for apl\.rticular mode of determining ,ren.t or as by arbitration, etc. In such calles, cO,urts have held that parties cannot ignore such stipulations, and invoke the aid of thecou$, in. tl;1e first instance,· to determine. But here.the respondents denythe right. They never advanced to the posb ,tilitD Qf a mere disagreement about the amount of compensation, or terml,l of use. As the,question of; right must be settled before the question of <lOmpensation is presented, and as the respondents, by denying therightj have forced the intervenors.to an application to. the court, it S,eem8 to. :me takipgcognizance of the ,question of right,ia bound to, detepnine the· Whole cMe, and settle both the right and the CQmpeneation. is ageneral.doctrinethat a court, once taking juriS" diction of a controversy, is bound to continue that jurisdiction up to the final determination of the.entire The stipulation provide4 for use lMlder such reasonable terms and regulations, and for .such sonable. com,pepsation, as a,greed ,upon. I t,cannot be: that the J:Ilere whim and caprice of the one .party-a bljnd refusal to come t(.l a,ny Il-greement-cap ,nullify the, entire forQe of the stipulation. It would ,make the right of the intervenors a :mere barren right. It would nullify the entire and simply to give to the respondeptsthat which without it they had,-the, privilege of pel'lllitting otherroads,to enter., It would be mockery to call such a provision a stipulation ;for a right. .. The .next, matter is one of exceeding difficulty. The stipulation.iI general in its nature,-contains no provision as to details. Is it thereby :J:6ndered so incomplete, that the courts may not enforce it? That court may enforce, byits decree,either a contra«t,or legislative rlgqt to the use by one railroad company of the tracks seems to me, the intimations of the supreme court in its recet;lt, cision in the Oasea" 6 Sup. Ct. Rep. 542, be doubted. In England legislation has been had in, reference to ,this matter, and theright thUf! granted has been by the decrees of courts; and so, if this tract bad detaill:J, so. that all that the court would· to do 1Vould be to ,declare by the plaintif was entitled to the would seem plain. Does benefit of such contract, the duty of the Ple omission .of the detailiJ, destroy the power of the court, for ofthe par, qQIi,tract ,.a, and leave with "the c6urt,in. the fib-.of the' of, the of
,I . .
' " " '.'
tails? I am aware of the rule that courts are not bound to relieve parties from mistakes or omissions; or to complete contracts which parties have,left incomplete. Blitit is also true that ofttimes, at the making of the contract for a right, it may 'bEl impossible to determine details,or the chMging situation of affairs'mayindicate that details also must be subject, to P19dification, and therefore should not be definitely prescribed, and. should be left to settlement by agreement or decree at the time the right'is insisted upon. In such oases, if the right is absolutely contracted for, and thedetailaare,ofa nature which courts may properly fix and settle, then, I take it, the Murta should not hold the contract incomplete, but determine the right, and also presoribe and settle the details. An act of the legislature might be passed giving to one company the right to use the tracks of another, and prescribing all the tern).s and conditions,-the details for the use. I take it, an act of the legislature would also be valid which simply declared. that one company should have the right to use the tracks 0fanother upon such terms and conditions as the parties might agree upon, or should be prescribed by the courts; and, if such a legisllltivell.Ct would have to be adjudged valid and complete, I see no satisfactory reason why courts may not also hold sufficient and valid a mere contract for the right,' and, determining the right, also settle and prescribe the terms of the use. It is true that such adecree cannot be executed by the perfonnanceofa act. It is continuous in its operation. It requires the constantexercise of judgmentandskill by the officers of the corporation defendant; and therefore,in a qualified sense, it may be true that the case never is ended, but remains a permanent case in/the .court, performance of whose decree may be the subject of repeateditiquiry by proceedings in the nature of contempt.' It is also true that in the changing conditions of busineSS the details of the use may require The time may come when the respondent's bUSiness may demand the entire use of its tracks, and thi:vintervellor's right wholly cease. But other decrees are subject to modification and change, as in foralimony. The courts are not iilfrequently called to modify thembjr'reason of the changed condition ofithe parties thereto. So, when' a. decree passes iii a case of this kind, it remains as apermanentdeterniination of the respective rights of theparties, subject only the further right of either party to apply for a xnodificatiOll tiponany changed condition of affairs; and, so far as any matter or sl.1pervisionofthe and judgment of the officers of 'contract, in terms, provides that the regulation ohM running of trains shall'be subject to the control of the officers oftherespondeht. While I'concede that there is force in the objection that, this must remlliIi, in a llllalified sense, a contimring case in the courts, with theconsmnt duty' of supervising the acts of the raspondent,yetit seems to nIe'thab\rherethere is aright there must, be a;, remedy; ahd' that the mere' rlou:rt procedure is flexible to' to right. Clearly, a mere', actIOn for 'be, a grossly inad(lquate remedy. Clearly,"the' public interests justifyl,' iftliey doubt conlpel, the enforce-
CENTRAL TRUST CO. V. WABASH, ST. L. &: P. BY. CO.
ment oftl;lis right, and so, with much hesitation, I have come to the conclusion that this objection Cll<llDOt 'be sustained. As to the objection on the ground of the want of mutuality in the QOotract, I think it of little forcE}. , "The respondent has been paid for the privilege that is now claimed. · The consideration, as I have heretofore shown,was ample; and, when a. party has received payment for a privilege, I do not think it can,resist the enforcement of that privilegeon the mere ground that it cannot COni pel the other party to continue in its enjoyment. ,ThefiIllU matter is that of compensation. In this, I think the master en:ed. He fixed the value of the right of way at a million of dollars; and repotWd that, in his judgment, the share of the interest on this value, and in the expenses of keeping up the track, which the intervenor COIll:paJ;ly,should pay, should be fixed upon a wheelage basis. So ,far as ramatter of,keeping up the track,I see no reason to doubt thejustice Qi'the rule fixE}d by the master; bllt, in regard to the interest on tPcvalue, I think the -intElry,enor, should 'pay one-half of that; and for these fellsons:, It is a famiIar that in a, large city like St. Louis;,along the ta:ack of an important railroad, within the, city limits, are built large manuftWturing establishments" warehouses, and other buildings" fortpe ,convenient transaction of business between the carrier, on the ;Qne :hl,md, ,and the manufacturer and the merchant, on the other. Another road (lorqsame track not only uses the property, of great the company owner has in the first instance, paid for, but alllo sbares'in the benefit Qf access to all these ,manufactories, warehouses, etc., IttJJ.us places in competition iwith the company for this, valuable t;msine88;S."wh competitio:o may operate to diminish the b]1siness of the or compel it tolower its rates to preserve the businC88. In either way, it operates 10: the serious detriment of the originalcompany. 'rhe new company comes in as an equal competitor. It'lOhares in aU the jbeQefits of this: bUsiness,and it may share Under .those circumstances it .sceInS to me no more than fair that a new, C(lmpany, which crowds itSelf into an equal access to such benefits and such privilege!;!, should pay an equal share of the interest on the value of the property. Hence I shall the objections of the respondent to the repdrt of the master, so. far !is concerns the amount of compensation; and I think that. the intervenor company must payone--half the interest on the, value, and; its share ofthElcost of keeping up t4e track, determined upon 'a wheelage basis. In other respects. the report of be confirmed. In conclusion, let me say that I have given the variousquesti9Ds here presented a most careful examination. I am fully sensible of the many difficulties. that have attended the. solution of these and my conclulUon has been reached aftet: much hesitation. I have endeavored .00 preserve fllllythe propertyrightll, of. the company. At the same time l.have been deeplyimpressed with the truth that rAilroads per,forming a quasi public serviee, and that, ,flO far as vested property j:oterl3Bts; impaired,flUch constructionshQuld be given to all con-
, FlJ:DEttAt. REPORTER.
tracts ltnd legislation as will make these public servants most fully sUDserve interests and welfare of the general public. "
TR:J!:AT, J. I concur fully with sO much of the foregoing opinion as the intervenor's right t(),the entrance into St. Louis over reright of way andtraoksisubject to reasonable regulati<ms by the safe conduct of persons and property in the Common use thereof. This case difficult and complicated inquiry, and the court has been embarrassed by the many obscure details of the different contracts. After reading'and analyzing with ihe most pains;taking care the special and 'general: pr(}visions of the contracts in ques,ti<>n, no other conclusion could be reached than that stated by my brother -judge, "'iz:, that the intervenothasa right to the use of the track and right of way of the respondent. :The very terms of the original contractS 10 which the respondent succeeds cast upon it the bbligations connected 'therewith. In other terms, it takeseum onere. Hence I concur fully 'with my brother judge thadhe right of user exists; but I differ as'io the or duty of fixirigtI1e'measureof compensation in this stage 'of the case. "Those rerhls are,' by the. contract, to be agreed upon by the 'parties; and why should they hot have an opportunity to come to an ,agreement? True; the respondent denies the right of intervenor to the use olits traokllhd ,right of way, 'litid'consequently, in the intermediate iinquiry, refused to enter upon terms,," ,How could it tnake such"terms 'without confessing intervenor's right? It having now been decided, With :full concurrence on my part, that 'the intervenor has the right cla.imed', the difficult proposition IS thrust ''upon the court as to the term's of its enjoyment. By the contract itself, ,tholle terms are to be settled by the' parties. Why'should they not be permitted to do so? If, hereafter, -it should occur that through fraud, a.ttempted. extortion, or otherwise, the right of user is to be practically defeated, the Murtwould neCessarily lay its hand upon the transaction, and enforce the respective rights of the parties as justice might demand. iItseems to me that the mea'sureof compensation should not be prescribed 'at: the present state of the controversy, irrespective of the terms of the 'contraot as to the mode of determining the same, the more especially as [tlie 'intervenor has no exclusive right in the premises. Another railroad corporation may appear;next year, 'and insist upon its rights under the 'contract; and so on; from time to time, successive corporations. The rais'p6ndent nlustmake, necessarily, the proper regulations for safety and otherwise, pertaining to the use of a common track entering a large city 'like St/LoUis, where the most complicated details lire needed for ap'Jiroa:ches to a common deppt,' ,,' '" , , It is true,that the Express Oases rested onan independent proposition, :a:ndcortsequently 'C>Alnnot gO\Tern this case. ,Here is a' distinct contract by ':""hioh the bound.:' It' took CUm onere. ;By ,the of the iobligation, others: could use, suhJect to its regulatioIis, the dommon track 'andrigbtof way, ,8utlh as the parties might agree 'upon. <They have not as yetilgl'eed, and , since this determination of the
& LIGHT CO.
right of intervenor, no opportunity has been given them tOCOl1sult and agree. It may be that theycari do so, more wisely and justly than the court, if opportunity is ,'It is obvious that courts are not, without fullest evidence before them, equal to' the task <if prescribing how railroads should be operated in their minute details, one wHh the other, in the interchange of traffic, or use, of common tracks, depots, etc.' When ditfipultles ,arise, as now, between them are to be determined, of details sho1;lld he left where the leaves it; othonly grel;lt injury and confusion may occur, uut the court be compeUed to'retail? an indefinite, control of the case, to 'meet ever-shifting cc:>ntingencies, as to transportation, new improvements, advancing. trade, etc; ',In my'View ohMs case; the question of compensation between the parties',shohld,not be decided p'ow, but reserved for further "Therel1,re'some minor elements as to the 8tatua of the parties, techriically,which may be worthy of furtl]er consideration, for'be By this is meant the position occupied by the pur"chasing:committee under, the terms of, sale heretofore made. "I' is that I in theforegoing exce}>t,so far 8.8, tJil:l same determines th,e1measure of conlpensatlOn between the pltrtles';iiotthat the rule may 'or may not be, correct, if the corirt, is 'campeBedilnaliy to pass upon the'same, but merely that such action is pre:. matu-re, 'and should be reserved- for further action, if needed. '
Rg1!':BURN 1'. CONsUMERS'
& LIGHT Co. and others.
(Oircuit (Jourt, N. IJ.l11in0i8.
, A receiver was appointed to windup a corporation engaged in the manufacture and supply of gas, ,By the order him he was to t,hll works in operation, tp necessary to 'pay and cMrge ,the debts of employes, and bIlls for supplIes and operatmg materIals contracted within sixty days prior to his appointment. PUrSuant to the orders of t:hecourt; he made improvements and extensions on the gas,.works of the company, part of which was paid by money raised on receiver's certificates, and 'Part out of the earnings of the company Default having been made in the payment of interest on bonds secured by mortgage given prior to his appointment, the trustee in the mortgage intervened, and a decree of foreclosure 'was entered on a cross-bill filed by him,' The property.was sold, and the , proceeds paid into court for distribution. Held,' that meters supplied to the company-weJre not operating or supply-materials, but of the nature of materials used in the constructi,on of the ,works; and, being. supplied more than 60 days prio.r to the appointment of the receiver, the creditors supplying them were net entitled to be paid' out '6f 'the. fund in court, in preference to the bonaholdets, on the ground that,the receiver having. under orders:of the court, applied part of the income of the-company,to the and extension of ,tha works gf the <)ompany, the cl,1tim for the metersl!ho\lld,pe paid out of ptbceeds of the reB. ' " , ' ' ". ,
SALE-;-"OPEBATllm AND SUl'PLY MATECONSTRUED. .
Bill to wind up a. corporation., '" " ,"" ' Grant Brady and Mr. Petit, for Goodwin Gas'stove &:Meter Co. v.29F.no.12-36