OREGON SHORT LINE OREGON
:LINE' & U. N. Ry. CO. 'V. ILWACO RAILWAY & NAV!, GA'1'ION Co.
, (O('1'CUit Cou'l"t, D. Washington, W. D. August lI7, lS9l1.)
CARRIERS..,..USB OF WHARlI' OF RAILROAD COMPANY BySTEAMBQATS.
A railroad company, owni\lg, a WhlLrf extending into public navigable waters, maintained: thereon a station and passenger depot, and used the wharf for its own line of connection with its railroad HeW, tllat a steamboat company, not a ,rival of company in its railroad business, was entitled to the use of the wharf, for 'a reasonable compensation, to the extent of reCeiving and dischargingplUlsengers and freight.
SAME-FACILITIES AT RAILRQAD WHARlI'.
That such wharf is too small to accommodate steamers, other than those of the railroad company, is not a ground for denying to a steamboat company, not a competitor except in its steamboat business, the right to use the wharf, for a,reasonar able wharfage, for the purposo of receiVing and discharging freight and gel's, since' a railroad, as a :public carrie)', must provide necessary facilities for the transaction of its bUSiness with safety and reasonable oonvenience to its passengers. ',
In Equity, Suit for an injunction to compel the defendant, a railway corporation and ownerof a wharf, to all<lw steamboats operated by the com plainantto receive and discharge passengers anti freight upon said wharf. Injunction granted. W. W. Cotton, for corriplainant. w. Fulton, for defendant.
HANFORD, District Judge. The complainant's grievance is that the defendant by its ownership of a wharf at the town of Ilwaco, extending into the navigableiwaters of Baker's bay, and by maintaining thereon a railroad sta HOll and passenger depot, appurtenant to its line of railway, and by making said wharf a landing place for steamboats owned and operated by it, and refusing to permit steamboats owned and operated by the complainant to land at said wharf, imposes upon all passengers and freight received by or discharged from its railroad, at said station, the necessity of being carried to and from other places by its steamboats, or suffer inconvenience in being carried to the next station on the line of said road, and has thereby contrived to secure a monopoly in the transportation of freight and passengers to and from the station upon said wharf. To prevent the defendant from giving such undue preference to its own steambo$.tR, and from so unjustly discriminating against the complainant, it prays that by an injunction the right to receive and discharge passengers and freight upon and from its steamboats at said wharf maybe entorced. The complainant concedes the right of the defendant, as owner of said wharf, to charge and collect reasonable wharfage from all vessels using the Elame, and consents that whatever relief may be granted to.it shall be upon equitable terms, and upon such conditions as the· court may impose for the protection of the defendant's rights. The defendant's 'counsel, in 'opposition to the prayer of the bill, argues that, by conceding the right to remUneration for the Use of the wharf, the
bill itself raises an insurmountable obstacle in the way of obtaining an said t:hat th,e fj.xing of rates requires the assent injunction. of the parties who are respectively to pay and receive, and involves the making of a contract between private individuals respecting their individual which is wholly'Qeyond the pow,et of the court. This argument is made as if the controversy affected natural persons and individual, rights'only. But,toJudgerightly, the parties must be placed in their true positions with relation to each other and to the public. The defendant is &crl*1ture ofthestate.. Both parties are servants and agents of the public, endowed with certain attributes alld powers not possessed by natural persons, and as to aU matters affecting the performance of their duties and. obligations t() the public they stand before the court ona footing ql1ite',oiflerent fi:om tllatof mere private individuals, transthemselves. Asa railroad company, the defendant Qwes a duty to ,the public to operate its railway,and maintain stations for'theconvenieIice of all who require transportation over it. It cannot, with due regard to the character of its line as a quasi public highcoming or going of its to or from any of way, its stations, by whatsoever veSselS yehicles may be employed fgrthe purpose; nOrqMli orveh,icle, offering to ,serve the public by carrying passengers or freight to and from a railway station, be discriminated against by being excluded from sharing priyileges allowed to others, without depriving the people in general of conveniences and facilities which they have a right to enjoy. Hack, etc., Co. v. 800tBtna, (M.ich.) 47 N. W.J;tep.,667. Asowner oj a wharf extemHng into public Da!vigltble waters, the defepdant isal$Q :beholdento the state for the privilege, or license enjoyed by it in being ,permitted to occupy: the public ground covered by said wharf, and for that reason it owes a further duty to the public to maintaip said wharf as an aid, to commerce and navigation. Having vol untariJy, by ,its acceptance 81)d ,eQjoyment of franchises and privileges, assumed the recipr0calobligation to serve the public, the defendant must perform it, and the power of the QOurts to enforce pE\rformance is am vIe. Ev:en as betw.een naturalpersous and in" matters. of strictly. individual concern, when One person has aesuwed towards another a duty, although the contrMtbE\tween them, from which the duty arises, be incomplete and lacking inessential elements of a valid contract, courts have power to compel ptlrformance, and to determine what particular acts constitute performance. The courts havE\ power in enforcing contracts,whenever necessary to the saving of vested rights in any case, to first give a construction to the contract,alld,.in doing so, to supply omissions therein. In the case athar the court is not ('aUed upon to do more in the way of Ulaking a contract for the in order to grant the injunction prayed fQr,.upon condition that the ,complainant pay the defendant reasonable wharfage, thanW.(),uld .be necessary in giving a judgment upon a quantum meruit, in favor of a laborer, for the value of services rendered, wjthout a previous request or promise to plly, or an agreement fixing the rate of bis wages. 'lio fix tbe·l'ateof a pE\raon's wages requires the assent of the
OREGON SHORT LINE & U. N. RY. CO. fl. ILWACO BY. & NAV. CO.
one who is to receive and of the one who is to pay, and involves the making of a contract between individuals respecting matters personal to them, and therefore raises difficulties for a court to deal with equal to any supposed to affect this case; and yet for ages it has been the rule of the courts of this and the parent country to compel one who has know. ingly permitted another to serve him without any agreement as to compensation therefor, and who retains the fruits of such service, to pay its value. In every such case the court will both imply a request and a promise, and supply the omission, by fixing definitely an amount or rate of wages. A further argument on the part of the defendant is to the effect that the is that of a rival, to share in the use of,its terminal grounds. A complete answer to this is to be found in the fact that the complainant has no railroad within the territory served by the defendant's line, and there is no competition between these two corporations except for steamboat traffic. The complainant does not ask for permission to use the defendant's premises, except to the extent necessary to secure, for passengers and freight carried by its boats, lUeans of ingress and egress to and from one of the regular stations on the line of the defendant's railway, without being subjected to inconvenience or expense, which passengers and freight arriving at and departing from the same station by other steamboats of the same class are free from. The defendant has attempted to show, as a further ground for opposition to the granting of the injunction, that the Wharf, is too small, to accommodate steamboats other than its own, and that for lack of space it is impracticable for the steamboats of both companies to me said wharf as a landing place. Whether this is so or not is a controver'ted question of fact. I find it unnecessary, however, to pass upon it, for I find, as a matter of law, that this defense cannot avail. The defendant must provide facilities sufficient for the transaction of the business it has undertaken, with safety, and with reasonable convenience to all of its passengers. Stock-Yards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct., Rep. 461. The attempt of the defendant to maintain a monopoly in the manner complained of in this case is contrary to the principles of the common law, as well as forbidden by the national interstate commerce law, and by the constitution of this state. Rather than extend' this, opinion, by even referring to the numerous authorities 'bearing upon the questions involved, I will merely refer to the very instructive opinion of the supreme court of Florida in the recent case of Indian River Steamb9at Co. v. East Coast Transportation Co., 10 South. Rep. 480, and the cases therein cited. It will be an easy matter for the officers of the different steamboats belonging to these two corporations to annoy and obstruct each other in doing business at said wharf, and correspondingly difficult for the court to enforce an injunction order without doing injustice to the defendant. This practical difficulty is the most serious of all the reasons suggested for not granting the order. It is possible, however, to overcome this difficulty. A competent and impartial superintendent., in charge of Said
.0') . .".;';
and. enforce,regulaJiollSwbereby the several steamboats .can .be flufficientJy: a<icommodated ,.and· kept from in terfering witli it is,in my opinion, proper for the court to require, this :w,' equally effective means to break the monopoly complained of." :Leta, writ of injunction issue as prayed for.
BIGELOW 'V. CHATTERTON.
of .Appeal8, Etghth Circuit. August 9, 1892.)
1 'EnDRAr, COURTs--<FoRlIIS O:l" SUIT-REOOVERY 011' UNOOOUPIED LANDS-BILL IN
in a federal court uiider Gen. St. Minn. 1878, o. 75, § 2, p. 814, to an adverse ola!m to,ul1oooupied lands, should be by bill in equity, and tlie,pleadlngs and practice should conform as nearly as may be to the pleadings atid practioein equity in the fedllraloourts· A suit
will t,ake'jydiQial notioe of the fact that patents for publio lands are frequ!lntly dated several years after the payment of the purchase money and the islIiuanoeof the cel'tificate of entry, lind therefore the production of a patent dated in 1,llll8ls no proof that the patentee did not have an interest in the lands which wauubject to attachment judicial sale in 1885.
Under the Minnesotailtatute requiring that the summons in attachment shall be publishlld w!'ekfor six oonsllcutive weeks, " a proof of publication is ilefectlve when it merely states that the pUblication was made" for the period of seven 'successive weekS." Godfrey v. Valentine, 40 N. W. Rep. 163, 39 Minn. 1137,
Und'er Gen. St. 'Minn.. 1878, c. 66, §§ 124, 125, a judge has authority, after the expiration of the term at Which final judgment was entered, to make an order nunc proCunc,allowing a to correct a defect in the proof of publication of summons in '"tt,achl:llent, by filing au a.ftIdavit showing the facts as to the publication. ownElr purchaser at the attachment sale, for that transfer takes place at the date of the sheriff's deed,and the corl'ection of the proof of pUblication merely preserv6s.the evidence 'of that fact.
011' PUlICTS AII'TERTERlII.
:8u<lh C!lrrection does not operate to transfer the titlet.Q the land from the original
6. SA.1IIB....-fUIUSDIOTION......COt.LA.TERAL ATTAClli. TbeaIllen(j.edproof of publication in such case shows that the court had jurisdiction 0.1 the attachment proceeding, and hence its judgment is not open to collateral attlloCk,:snd.mere irregUlarities or errors in its proceedings are immaterial.
In ¥tinD.l!l\Qta. it is not necE;lssarythat an aftldavitfor attachment sbould state that defendaIit'hll,s'property in the state subject to attachment, and fully describe the same. Kenney v. Goergen. 31 N. W. Rep. 210, 36 Minn. 190, followed.
SUE. , ..
"(Tp(j.el'Gen. St. Minn. 1878, c. 66, § 318, the failure of the sheriff to give the req:: rlotiOEl of sale of lands on att Bcbment does not affect the validity of tbe sale , eithElJ: '68'. t4 third persons or parties to the action. 9. p Lee L: B gelovV sigpEl1! all,ote by his initials, "L. L. Bigelow." Suit was brought , thereon against him' asL. L: Biglow"and his lands were sold in attachment pro. oeedings, after summons. Held, that the use of the initials and the difference in the spelling' were mere irregularities, which did not. affect the jurisdiction of the CGu,r1l;aod'the sale was not open to collateral attack.