Burlington Northern Inc. v. United States

NICHOLS, Judge,

concurring:

Everything that Judge Bennett says about the case is perfectly valid by my lights and I join in it, yet the overall effect I find somewhat unsettling. The reason for this may be the appearance of excessive respect for the so-called "actuarial method” of estimating useful life. Certainly by Judge Bennett’s showing it is, as used in this case, an example of the pompous pseudo-science that so often goes down readily with courts and lawyers. He had to write so as to avoid appearing disrespectful to our prior precedent decisions, and yet it appears reasonable to suppose that defendant might have achieved the same, result in the prior cases, as here, if it had attacked the technique in the same vigorous manner. We lawyers are by occupational myopia incapable of seeing that the emperor has no clothes, until somebody tells us. Such a technique as plaintiff attempted here is never frozen into law, as plaintiff argued, merely by approved use in prior court cases, and the prior cases themselves make that clear. The most the precedents can do is to establish that testimony is admissible. How much weight, if any, it will have is for the trier of fact. Techniques of estimating useful life, like techniques to estimate fair market values or reasonable profits, are just techniques, not rules of law except where made so by statute or regulation. The careful trier of fact will, if he can, use two or three to test against a tentative conclusion and apply or abandon them to the extent he finds them useful or the reverse. Leesona v. United States, 220 Ct. Cl. 234, 259 , 599 F.2d 958 , 973, cert. denied, 444 U.S. 991 (1979).

Common sense suggests that the useful life of the gradings and tunnel bores of a line of railroad cannot exceed the useful life of the line of which they are a part. In this country a number of economically marginal railroad lines were built which with all the changes in transportation economics, have become financial disasters to their owners and have had to be abandoned. Naturally the gradings and tunnel bores along these lines were abandoned too. A good many of the retirements here involved were of that character. With regard to the main or "heart” line, some portions of the rights-of-way have been condemned, e.g., for reservoir flowage, and substitute rights-of- *127 way obtained. The gradings and tunnel bores on the original rights-of-way also figure as retirements here, though such transactions can hardly be placed in any relationship to the obsolescence of such facilities. A third category has been the "daylighting” of tunnel bores, i.e., cutting them open overhead to eliminate tunnel ventilation problems. It is not surprising that as a matter of actual experience to 1956, or from then to date of trial, the likelihood of one of these kinds of retirements bore no discoverable relationship to the age of the facility. The "actuarial method,” as developed by plaintiff, required of the court a great and beautiful faith that such a relationship would somehow develop in the future, as the plotted curve dipped down.

As, in general, on uneconomic branch lines, the useful life of the gradings and tunnel bores ended with the economic useful life of the lines, so, conversely, the continued and vigorous useful life of the main line dictates some abandonments there because tracks must be straightened and grades reduced. To some extent abandonments are the result of obsolescence of the line; to some extent the result of the reverse of its obsolescence. The predictable obsolescence and wear and tear that we encounter with buildings and many kinds of transportation equipment and machinery, making estimates of useful life possible, have such diverse and disparate effects here that any estimate of useful life appears to me a chimaera, conjured up for forensic purposes only. I question whether anyone trained in the difficult and demanding science of the actuary would acknowledge as his own the "actuarial method” as used herein.