Petitioners Brief — Chicago, Milwaukee, St. Paul & Pacific Railroad v. Chicago, Rock Island & Pacific Railway Co.

16

BRIEF IN SUPPORT OF PETITION FOR WRITS OF

CERTIORARI.

e*

THE OPINIONS OF THE COURTS BELOW.

The opinion of the United States District Court for the

Southern District of Iowa appears at Record page 212.

The opinion of the United States Cireuit Court of Ap-

peals for the Kighth Circuit appears at Record page 270.

Denial of the Petition for Rehearing by the United

States Circuit Court of Appeals for the Eighth Circuit

was made without opinion and the Order appears at Ree-

ord page 293.

Il.

SUMMARY OF THE ARGUMENT.

1. The Circuit Court of Appeals erred in holding that

petitioners had no property interest in the property con-

demned, because petitioners’ interest in the property con-

demned constituted private property within the meaning

of the Fifth Amendment, for which, if taken or damaged,

compensation must be paid.

2. The Circuit of Appeals erred in holding that peti-

tioners’ property had not been taken or damaged.

3. The Cireuit Court of Appeals erred in holding that

petitioners had failed to prove their damages and that

their damages were consequential and not proximate.

4. The Circuit Court of Appeals erred in denying an

equitable apportionment of the condemnation award.

17

IIT.

ARGUMENT.

3.

The Circuit Court of Appeals Erred in Holding That Peti-

tioners Had No Property Interest in the Property Con-

demned, Because Petitioners’ Interest in the Property

Condemned Constituted Private Property Within the

Meaning of the Fifth Amendment, for Which, if Taken

or Damaged, Compensation Must Be Paid.

The foundation of the property rights of the St. Paul in

these cases is contained in the Indenture between the rail-

roads, dated August 1, 1901, and the substantial possession

derived and held by the St. Paul thereunder. The essence

of the granting clause contained in Article I, See. 2, of this

Indenture, is as follows:

‘‘The Rock Island Company hereby grants to the

St. Paul Company * * * the full, joint and equal use

** * of all that portion of said southwestern division

of the Rock Island Company * * * meaning and intend-

ing hereby to include in the description aforesaid all

and each portion of said railway and appurtenant

property between and at the points aforesaid, and all

such provement and betterments thereof and addi-

tions thereto as shall be jointly used by the parties as

hereinafter provided.’’ (R. 87.)

The statement in the Circuit Court’s opinion that ‘the

agreement between the parties was in form a contract and

not a conveyance of an interest or estate in realty or other

propertyu’’ is a definite misconception of the granting

clause just quoted. The grant embodies the very words

of art which are recognized universally in the law as creat-

ing an easement.

The St. Paul had a continuous line of railroad from

Chicago to Kansas City, with the exception of this gap of

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18

approximately twenty-six miles. The St. Paul wanted not

merely a trackage agreement or running rights, but the

right to use this line, and do business thereon, and place

its property and employees thereon. The Rock Tsland

made a definite grant of these rights in the explicit terms

of the Indenture. In reliance upon this grant the St. Paul

went into actual, substantial, physical possession of the

railroad, together with the Rock Island, and built some

two miles of railroad tracks, constructed telephone and

telegraph wires, built various structures and otherwise en-

tered into enjoyment of a possessory estate as shown in

the Summary Statement.

For these property rights the St. Paul agreed, among

other considerations, to pay its wheelage percentage, de-

termined according to the use of the line, of the cost of all

repairs and maintenance on each and every part of the line

(R. 92).

It is true that the actual physical water damage result-

ing from condemnation of the Government’s easement was

confined to an area 23,500 feet upstream from the dam, and

that the St. Paul had no independently owned structures

in this area, except its telephone and telegraph wires. The

Circuit Court’s observations that the St. Paul was not

damaged because it had no structures of its own in this

23,500 foot area constitute a failure to grasp the ‘‘prop-

erty’? question involved. Evidence of the grant and the

St. Paul’s possession and independently owned improve-

ments was offered to establish its property interest. This

point escaped the Cireuit Court. That Court viewed the

absence of structures independently owned by the St. Paul

in the area of water damage as negativing the St. Paul’s

damages. The St. Paul didn’t claim any such basis for

damages. Its damage claim was bottomed on its obliga-

tion to contribute in cash to the cost of making the repairs

where the water damage occurred.

SONI AE LES Bi MB AD EP MSA EE IRIEL NERO PLY

19

That the St. Paul’s property interests, resting wpon the

facts recited, constitute private property within the Fifth

Amendment, and that the Circuit Court denied to the St.

Paul the guarantee of the Fifth Amendment, appears from

the following decisions:

International Paper Co. v. United States, 282 U. 8. 399,

presented a situation where a paper mill was entitled, by

conveyance and lease to use 730 ecubie feet of water per

second from a power company which held the right to use

10,000 cubic feet of water per second by grant from the

State of New York. The Secretary of War requisitioned

all of the electrical power which the power company was

eapable of producing. This resulted in shutting off the

water power from the paper mill and caused an expense to

the paper mill of $304,685.36. This Court held that the

paper mill was entitled to recover its expense as just

compensation and said:

“‘There is no room for quibbling distinctions be-

tween the taking of power and the taking of water

rights. The petitioner’s right was to the use of the

water; and when all the water that it used was with-

drawn from the petitioner’s mill and turned elsewhere

by government requisition for the production of power

it is hard to see what more the Government could do

to take the use. * * * But the Government purported

to be using its pewer of eminent domain to acquire

rights that did not belong to it and for which it was

bound by the Constitution to pay.’’

In Duckett & Co. v. United States, 266 U. S. 149, the

Government took over the Bush Terminal in Brooklyn, in-

cluding a pier which was part of the terminal. Claimant,

who had the use of the pier under a lease from the owner,

was required to vacate, and this Court directed an award

of just compensation to him for loss of use of the pier.

Pumpelly v. Green Bay Company, 13 Wall. 166, involved

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20

water damage to plaintiff’s property as the result of de-

fendant’s dam which raised the water level of a lake. This

Court said:

‘*But there are numerous authorities to sustain the

doctrine that a serious interruption to the common

and necessary use of property may be * * * equivalent

to the taking of it, and that under the constitutional

provisions it is not necessary that the land should be

aboslutely taken.’

United States v. Lynah, 188 U. S. 445, involved the over-

flow of plaintiff’s land by the construction of a Govern-

ment dam and, applying the Fifth Amendment, this Court

held:

“It is clear from these authorities that where the

government by the construction of a dam or other pub-

lie works so floods lands belonging to an individual as

to substantially destroy their value there is a taking

within the scope of the Fifth Amendment. While the

government does not directly proceed to appropriate

the title, yet it takes away the use and value; when

that is done it is of little consequence in whom the fee

may be vested.”’

United States v. Welch, 217 U. S. 333, and United States

v. Grizzard, 219 U. S. 180, held that easements were pri-

vate property within the protection of the Fifth Amend-

ment, and must be compensated for, if taken for public use.

Monongahela Nav. Co. v. United States, 148 U. S. 312,

holds that a franchise is private property within the Fifth

Amendment and can no more be taken without just com-

pensation then can tangible, corporeal property.

United States v. Wheeler Township (C. C. A. 8), 66 F.

(2d) 977, presents a striking similarity to the cases at bar.

The Government sought to raise the water levels in Lake

of the Woods by a perpetual easement to overflow the high-

ways in Wheeler Township, and contended the township

highways were not property within the constitutional pro-

21

vision prohibiting the taking of property without just

compensation. The raised water levels required the town-

ship to reconstruct its roads. The township demanded, as

just compensation, the difference in expense between pass-

able roads under natural lake levels and passable roads

under flowage levels provided in the condemnation. The

Court said:

‘“‘that easements, such as these highways, are ‘prop-

erty’ is not open to dispute.’’

The opinion further states:

‘Therefore, these highways cannot be taken and

their use as such destroyed, without compensation

under the Fifth Amendment.’’

Finally, the Court declared that

‘“‘the right to exoneration from the burden of con-

structing and maintaining a substitute way is a val-

uable property right, ete. * * * To the extent that

this burden has been increased by this taking, there is

a deprivation for which the law requires compensa-

tion.’’

The St. Paul submits that in the cases at bar the Circuit

Court of Appeals fell into error in denying Petitioners’

property rights, because it placed its dependence upon three

eases which are not in point. These cases are Union Pacific

Railway Company v. Chicago, Milwaukee & St. Paul Rail-

way Company, 163 U. S. 564 (two cases), and Englewood

Connecting Railway Company v. C. & E. I. Ry. Co., 117 Il.

611, 6 N. E. 684.

No eminent domain questions were involved or decided

in the Union Pacific cases. The Fifth Amendment was not

under consideration. The question in these cases was

whether or not the Union Pacifie could evade its respon-

sibility under certain contracts granting use of its Mis-

souri River bridge to the St. Paul and Rock Island, on the

theory that the contracts were ultra vires. The court held

that the contracts were valid and enforceable, and within

etireeterriemainnree ae

22

the powers of the Union Pacific to execute. It did not

decide, nor was it called upon to decide, whether the St.

Paul or Rock Island would have been permitted to share

in a joint condemnation award with the Union Pacific.

Furthermore, the contracts involved in the Union Pacific

cases are radically different from the one in the cases at

bar. In the Union Pacific cases the grant was of the full

equal and joint possession and use of its main and pass-

ing tracks. In the cases at bar the grant was of all that

portion of said southwestern division of the Rock Island

Company, including all of said railway and appurtenant

property and all improvements and betterments thereof

and additions thereto (R. 87).

The distinction is well pointed out by the language of

this Court in the Union Pacific cases, at 163 U. S., page 583,

where the Court said:

‘‘And throughout the whole contract there does not

appear to be a single provision which looks to any ac-

tual possession by the Rock Island of any of the Pacific

property beyond that which was involved in its trains

being run over the tracks under the direction of the

other company.”’

and on the preceding page this Court said:

‘‘The company (Rock Island) had no possession be-

fore its trains came on the tracks or after they had run

off of them, and while its trains were on the tracks its

possession was only of the particular part occupied

temporarily while running over them.’’

The Union Pacific cases are wholly dissimilar on the

facts, the issues, and the decisions, from the cases at bar,

and the Circuit Court of Appeals clearly erred in making

those cases the essential ground of its decisions in the

cases at bar.

Englewood Connecting Railway Company v. Chicago

and Eastern Illinois Railway Company, 117 Ill. 611, 6 N. E.

684, cited by the Circuit Court of Appeals, is not authori-

23

tative because in that case the Chicago and Eastern Illinois

Railway was not deprived of its property or subjected to

any monetary damages. It did not contribute to the repair

of any damage to the railroad as the result of the condem-

nation and did not pay any increased amount of money

for use of the railroad thereafter.

The Circuit Court’s decision that the St. Paul had no

property rights is at complete variance with the Record,

and violates the Fifth Amendment, and is a departure from

the holdings of this Court.

2.

The Circuit Court of Appeals Erred in Holding That

Petitioners’ Property Had Not Been ‘‘Taken”’ or ‘‘Dam-

aged.’’

Since the Circuit Court of Appeals held that the St. Paul

had no property rights in these cases, it necessarily held

that there was no ‘‘taking’’ or ‘‘damage”’ to the St. Paul’s

non-existent property rights. The argument and the au-

thorities in snpport of the first proposition discussed are

equally applicable and need ro repetition here.

United States v. Miller, 317 U. 8. 369, United States v.

Chicago, B. € Q. R. Co. (C. C. A. 8), 82 F. (2d) 131, and

the other cases which have been discussed hold definitely

that ‘‘just compensation’? under the Fifth Amendment in-

cludes ‘‘damages.’’

The statement in the opinion of the Circuit Court of

Appeals that ‘‘the St. Paul is still enjoying the right of

use acquired under the contract in all respects as it did

before the condemnation proceeding’? is palpably wrong.

The St. Paul had the right, before this condemnation, to

use this property without paying the cost of repairs for

the damages inflicted upon it by the condemnation. The

condemnation inflicted $59,104.00 of expense on the St.

PRCT SER Oe TT BASF

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24

Paul, no part of which existed before, and no part of which

would exist now except for the fact of the condemnation.

The damage is proof of the taking.

3.

The Circuit Court of Appeals Erred in Holding That Peti-

tioners Had Failed to Prove Their Damages, and That

Their Damages Were Consequential and Not Proximate.

United States v. Miller, 317 U. S. 369, and Monongahela

Nav. Co. v. United States, 148 U. S. 312, state the rule

which is phrased in the following language taken from the

former opinion:

“‘The Fifth Amendment of the Constitution provides

that private property shall not be taken for public

use without just compensation. Such compensation

means the full and perfect equivalent in money of the

property taken. The owner is to be put in as good con-

dition pecuniarily as he would have occupied if his

property had not been taken.’’

In the same case the Court stated the rule governing the

requirements for proof of damages:

‘It is conceivable that an owner’s indemnity should

be measured in various ways, depending upon the cir-

cumstances in each ease, and that no general formula

should be used for the purpose.’’

In United States v. Wheeler Township (C. C. A. 8), 66

F. (2d) 977, where expense of road maintenance was in-

creased by the flowage easement condemned, the rule was

stated, on the authority of Monongahela Nav. Co. v. U. S.,

148 U. S. 312, 328 as follows:

‘‘When the ordinary measure of loss (decrease in

actual or assumed market value) cannot be applied, as

here, then ‘whatever is necessary to be considered in

order to determine what is an equivalent for the ap-

propriation of private property is germane to the

question of compensation.’ * * * Here we must be

o Oo R

SsS=lUc( kr ’ Lal we | al

25

guided by this record as to what money loss will fall

upon the township because of this condemnation. It is

the duty of the township to maintain its roads and

that duty can be enforced. * * * The right of the town-

ship and its taxpayers is to maintain such roads with

the lake at natural levels and ‘the right of exoneration

from the burden of constructing and maintaining a

substitute way is a valuable property right belonging

to the group of taxpayers called a town.’ * * * To the

extent that this burden has been increased by this tak-

ing there is a deprivation for which the law required

compensation. ”’

The record in the cases at bar is that the condemnation

did not take the railroad property, but damaged it. The

damage was to the entire property, including all of the

estates and rights in it.

The award was made tor the sole purpose of making

the repairs caused by the condemnation, and it consists of

nothing else. If it were not for the necessity of repairing

this damage, there would be no money in the registry of

the Court. Since the exclusive source of the money in the

award is the cost of repairs, therefore, the money should

belong to the parties who have the obligation to pay for

the repairs. They are the parties who sustained the dam-

age.

The St. Paul has sustained an actual pecuniary hurt and

a definite ascertainable loss in this condemnation. It is

required to pay its share of the cost of repairs which re-

sulted from the damages inflicted by the condemnation. If

just compensation under the Fifth Amendment requires

that a full and perfect equivalent be given to the parties

actually damaged, then it must follow that the St. Paul is

entitled to its damages in this case, because there is no

question about the fact that it is hurt.

The rule that damages are consequential where property

is not actually taken or damaged or where lawful govern-

eS NE a oe

26

mental action in the public good produces harmful conse-

quences without an invasion of individual property rights,

has no application in these cases. The decisions in Pwn-

pelly v. Green Bay Company, 13 Wall. 166, and United

States v. Lynah, 188 U. S. 445, rule out any such possibility

in the cases at bar, where the invasion of the property and

the infliction of the damage are undisputed.

The Circuit Court of Appeals used the term ‘‘conse-

quential damages’’ in a wholly different sense, when it

said:

‘‘Any damage which the St. Paul may sustain by

reason of an increase in its expenses under the con-

tract with the Rock Island is not the proximate result

of the taking of the government’s easement along the

Rock Island property. Such damage to the St. Paul,

if any, is chargeable to the terms of the contract be-

tween the parties and is not recoverable in a condem-

nation proceeding. United States v. Chicago, Burling-

ton & Quincy Railroad Company, 8 Cir., 82 F. (2d)

131.”’ (R. 277.)

This statement of the Cireuit Court’s opinion is not

sound, and is not understandable except in the light of the

Circuit Court’s denial of the St. Paul’s property interest.

The case of United States vs. Chicago, B. & Q. R. Co., cited 4

by the Circuit Court, is not the slightest authority for the

quoted pronouncement.

The St. Paul’s damage in these cases cannot be the re-

sult of anything else but the condemnation by the Govern-

ment. If it had not been for this condemnation the St.

Paul would not have been hurt. The damage is not charge-

able to the terms of the so-called contract. This Indenture

between the railroads (R. 86-106), which is not merely a

TI

contract, but a definite grant of a specific easement, is the na

basis of the St. Paul’s right in this property. It is not a

third party act, or act of God, or interruption in any sense int

of the unbroken chain of causation between the Govern-

27

ment’s condemnation and the St. Paul’s loss. It is no dif-

ferent than any other lease or easement. It is evidence of

the act which created the St. Paul’s property right.

The St. Paul is actually damaged. It is out of pocket.

The loss is a money loss. The one and only cause for visit-

ing this loss upon the St. Paul is the condemnation. Under

the authorities, the St. Paul is entitled to be reimbursed

for this loss, or else, in spite of the Fifth Amendment, it is

turned out of court to bear its own loss, and the Rock Is-

land is awarded this portion of the money for damages

which it never sustained.

The Circuit Court’s opinion says in effect that the St.

Paul should have protected itself from damage by contract

with the Rock Island. If the St. Paul’s property was dam-

aged so as to entitle it to compensation under the Fifth

Amendment, then it should not be deprived of its rights on

the theory that it had to bargain with the Rock Island to

preserve the constitutional guarantee. The St. Paul cer-

tainly did not have to anticipate in entering into the In-

denture of August 1, 1901 (R. 86), that some third party

would thereafter damage its property in condemnation

proceedings without making just compensation for such

damage, as required by the Fifth Amendment.

4,

The Circuit Court of Appeals Denied an Equitable Appor-

tionment of the Condemnation Award.

The St. Paul is of the firm belief that the damages re-

sulting from this condemnation were fixed and determi-

nable as of the date of the Government’s taking of its

easement, or as of the date of the payment of the award

into the registry of the Court. (Watson v. United States,

34 F, Supp. 777, 779.) Therefore, the St. Paul prayed for

its wheelage percentage of the total award as the amount

28

of damage or ‘‘just compensation’’ to which it was entitled

(R. 24). The sum of $59,104.00 is the St. Paul’s exact

wheelage percentage of the loss computed as of the time

of taking or payment of the award into Court.

While the St. Paul regards this as the correct amount

and prayed accordingly, it nevertheless inserted an alter.

native prayer in its petition (R. 24), in order to protect

itself from the inequitable conduct threatened by the Rock

Island. Exhibit 5 (R. 120), shows that the Rock Island,

by making a line change over part of the area affected,

instead of making the repairs as originally contemplated,

has actually caused a loss to the St. Paul of $72 ,022.00

(Exhibit 5, R. 120). This figure is arrived at by adding

the following items:

(1) $18,020, being the sum of money, which, if presently

invested at the legal rate of interest and expended with

principal and interest over the unexpired term of the in-

denture, would produce an amount sufficient to pay two

per cent per annum, for the unexpired term of the inden-

ture, on the net increase in the investment account result-

ing from the line change.

(2) $37,772, being the sum that would be charged as

wheelage proportion on the service loss resulting from the

retirement of the old line.

(3) $16,230, being the sum that would represent the

wheelage proportion of $35,010, the estimated cost of

remedial and protective repairs to that portion of the line

not relocated.

Thus it will be seen that as a result of this condemna-

tion, $59,104.00 is the minimum damage to which the St.

Paul will be subjected. The Rock Island has always

contended that, as owner of the fee, it is entitled to all

of the award, and that it is no concern of the St. Paul that

the Rock Island is fortunate enough to collect $127,539.00

29

from the Government in the condemnation suit. It will

attempt to hold the St. Paul liable under the indenture for

its wheelage proportion of the damages, which will already

have been paid in full by the Government. This means

double compensation for the Rock Island and no compen-

sation for the St. Paul. Clearly, the equities are not with

the Rock Island in this respect.

While no case has been found in this Court holding that

an apportionment of a condemnation award is an equitable

proceeding and rival claimants must be required to do

equity, there is authority in other courts for this rule.

Turner v. Woodward, 259 Fed. 737, from the First Circuit,

where rival parties claimed the fund deposited in court,

the rule was announced as follows:

‘‘The proceedings before the court were not, as

already indicated, legal, they were equitable. The dis-

tribution of this fund was a proceeding in equity; this

is now conceded by all counsel.’’

See also Cobo v. United States, 94 F. (2d) 351; United

States v. Klink, et al., 3 F. Supp. 208; Law v. Chicago

Sanitary District, 197 Ill. 528, 64 N. E. 536; and State v.

Lewis County, 80 Wash. 417, 141 Pac. 906.

Conclusion.

The $127,539.00 deposited by the Government in the reg-

istry of the District Court represents the actual cost of

repairs which would be required to place the railroad in

question in as good, safe and efficient condition as it was

before the condemnation. Obviously, this money should

go to those required to bear the cost of making such re-

pairs, which cost, under the indenture, is prorated between

the parties on a wheelage basis. The Government, in

agreeing to this award, did not intend to enrich the Rock

Island at the expense of the St. Paul. It intended, on the

—_

contrary, to make both parties whole. This result cannot

be accomplished unless the St. Paul is awarded its proper

share of this award in these proceedings. If the Rock

Island prevails in this case, it will succeed in having its

damages paid twice, first by the Government and then by

the St. Paul to the extent of the wheelage proportion

under the indenture. For the reasons stated, Petitioners

respectfully submit that writs of certiorari should be

granted in these causes, and the decisions of the Circuit

Court of Appeals herein should be reviewed by this Hon-

orable Court and reversed.

30

Respectfully submitted,

M. L. Buvem,

Joun N. Hucues,

Attorneys for Petitioners,

A. N. Wuir.ock,

Of Counsel.

CHAMLES ELmont

IN THE |

satiate

Supreme Court of the Anited States

OCTOBER TERM, 1943.

>

No. wae

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

RAILROAD COMPANY, ET AL., Petitioners,

vs.

THE CHICAGO, ROCK ISLAND AND PACIFIC

RAILWAY COMPANY, ET AL., Respondents.

No.

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

RAILROAD COMPANY, ET AL., Petitioners,

Vs.

THE CHICAGO, ROCK ISLAND AND PACIFIC

RAILWAY COMPANY, ET AL., Respondents.

RESISTANCE TO PETITION FOR WRITS OF

CERTIORARI.

Marcvs L. BELL,

W. F. Peter,

1025 LaSalle St. Station Bldg.

Chicago, Illinois,

J. G. GAMBLE,

A. B. How ann,

500 Bankers Trust Building,

Des Moines, Iowa,

Altorneys for Respondents.

Bruce FE. Dwine..,

1025 LaSalle St. Station Bldg.,

Chicago, Illinois,

Of Counsel.

SSR G EN EEN SBR TA RP SRR REM CO TPN RSF

— —

INDEX. ;

Page f

STATEMENT OF THE CASE 1 ‘

REASONS WHY THE WRIT SHOULD NOT ISSUE ] f Q

ARGUMENT

I. Review upon certiorari is not a matter of right but of sound *

judicial discretion, and will be granted only where there {

are special and important reasons therefor . 9 {

II. The Muscatine trackage contract conveyed to the St. Paul :

Company no estate or interest in the real estate of the Rock a

Island. The St. Paul had no estate in Rock Island prop- :

erty sufficient to support an award of damages in its favor 10 E

%

Ill. Both the District Court and the Circuit Court of Appeals ;

correctly held that the St. Paul failed to prove that its prop- ‘

erty was damaged or taken, or the extent of the damage t

suffered ; : 12 :

IV. Where several contracts relating to the same general sub- i

ject matter have been entered into between the same parties, iv

the construction by the parties, themselves, of the language r

found in one contract is entitled to almost controlling weight

in construing the same contract or contracts of the same i

series Inde R : aw , 14 i

é

CONCLUSION ‘ eeu 15 k

&

;

TABLE OF CASES.

18 American Jurisprudence 862 8

Bowers Hydraulic Dredging Co. v. United States, 211 U. S. 176, 53

L. Ed. 136 8

Clapp v. Boston, 133 Mass. 367 8

Copenhaver v. United Fuel Gas Co., 156 S. E. 884 8

17 C. J. Sec., Page 764 ; Ss

Duckett & Co. v. United States, 266 U. S. 149 13

Englewood Connecting Ry. Co. v. Chicago & Eastern Illinois Ry. Co.,

6 N. E. 684, 117 Ill. 611 6. 8, 11

Hamilton Brown Shoe Co. v. Wolf Bros., 240 U. S. 251 4; a0

Houston Oil Co. v. Goodrich, 245 U. S. 440 . ie

International Paper Co. v. United States, 282 U. S. 399 Ss: 13 E

Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387 eae ae ;

Magnum Import Co. v. Coty, 262 U. S. 159 Me ee x

fi.

Matthewson v. Skinner, 66 Kansas 309, 71 Pacific 580 8

McCullough v. Edwards Elec. Co., 165 N. W. 157 (Neb.) 8

Omnia Company v. United States, 261 U. S. 502 ee TG,

Pullen’s Will v. Pullen, 165 N. W. 25 SONNE ledniionmsiabictitie citings

Pumpelly v. Green Bay Co., 13 Wall. 166 —s ions ientdalsioebudeiiceadliniinetass Ta

Rule 38 of the Supreme Court of the United “eg va EL

Stickland v. Pennsylvania Railroad Co., 154 Pa. 348, 21 L. R. A. 224 _ 8

Thompson v. Baker, 203 N. W. 195 Ae seeks aeremepn a See On aE Te 8

Tilden Company v. Densten Hair Co., 103 N. E. 916 Sicbabadeaciaie ae

Union Pacific Ry. Co. v. C. R. L. & P. Ry. Co., and Union Pacific Ry.

Co. v. C. M. & St. P. Ry. Co., 163 U. S. 564, 41 L. Ea. 265, 16 Su-

preme Court 1173 ............ a eossneateraseesseeasensnensnnecensersvassnscsoncce GO, 9, Bf

United States v. C. B. & Q. Ry. Co., 82 Fed. 2d. 131 _ cigs oatitinembecas a

United States v. Johnston, 268 U. S. 220 ss clibeipnenismebhietidlcteas

United States v. Wheeler Township, 66 Fed. 24.977 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1943.

No.

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

RAILROAD COMPANY, ET AL., Petitioners,

vs.

THE CHICAGO, ROCK ISLAND AND PACIFIC

RAILWAY COMPANY, ET AL., Respondents.

No.

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

RAILROAD COMPANY, ET AL., Petitioners,

vs.

THE CHICAGO, ROCK ISLAND AND PACIFIC

RAILWAY COMPANY, ET AL., Respondents.

RESISTANCE TO PETITION FOR WRITS OF

CERTIORARI.

STATEMENT OF THE CASE.

Petitioners’ summary statement of the matter involved

correctly recites the history of the litigation, and the man-

ner in which the controversy arose. It omits many im-

portant facts, and we, therefore, substitute the following

statement in lieu of that appearing at pages 3-7 of the peti-

tion: (The statements concerning a substantially identical

trackage contract at St. Paul, Minnesota, and the position

taken by petitioners in that case, are not found in peti-

tioner’s statement).

ee ae. |

ee

SSE SOPRA IE

spi SER OLA STS.

it See A Ta Oe

—2—

The Davenport-Muscatine Trackage Agreement.

On August 1, 1901, The Chicago, Rock Island, and Pa-

cific Railway Company (hereinafter called the Rock Island),

being the unqualified owner of a line of railroad on the

west side of the Mississippi River between Davenport and

Muscatine, Iowa, entered into an agreement with the Chi-

cago, Milwaukee, and St. Paul Railway Company (herein-

after referred to as the St. Paul), by which the Rock Island,

- for a term of 99 years from and after June 30, 1903, granted

to the St. Paul

“the full, joint, and equal use in common with the

Rock Island Company, and such other company or com-

panies as the Rock Island Company siall at any time

permit to use the same or any part thereof, * * * that

portion of the Southwestern Division of the Rock Is-

land Company extending from 2 point at B. C. R. & N.

crossing about two miles west of Davenport Station to

a point in Warren Street in the City of Muscatine,

Iowa.” (Record 86-106)

The Rock Island contracted to maintain the property;

to employ all necessary agents, servants, and employees,

and to require them to give the same attention to the busi-

ness of the St. Paul Company as to its own business. (Rec-

ord 89) The Rock Island was to prescribe schedules of

trains, and rules and regulations for the operation of the

railway, which were to accord equality of right and privi-

lege to all trains of the same class operated by each party.

All trains were to “move under and in accordance with the

orders of the superintendent or train dispatchers of the

Rock Island.” (Record 93-94)

The St. Paul agreed to perform no switching for any

other railway company upon any of the tracks, unless the

written consent of the Rock Island was first secured. (Rec-

ord 96) If the St. Paul desired additional side or spur

tracks, or additional facilities, not existing at the date of

the agreement, it might give notice of such desire to the

Rock Island, and the Rock Island then might construct or

provide such facilities, or permit the St. Paul so to do, which

facilities the Rock Island might, at its option, purchase by

paying the cost. (Record 94-95) The St. Paul, after 10

Roget aie

willis %

years, by giving 5 years’ notice in writing, may terminate

the contract entirely. (Record 102-103)

The St. Paul agreed:

A. To pay 2% annually upon an agreed valuation

per mile of track, the rate to be reduced in the event

the Rock Island permitted any other railway company

to use the railroad involved.

B. To pay one-half of all taxes and assessments

levied upon the railway, subject to a like qualification.

C. To pay 2% annually upon the cost of all addi-

tions and permanent betterments, which the Rock Is-

land might make upon the railway, including addi-

tional tracks, viaducts, bridges, subways, works, and

appliances, and subject to a like qualification.

D. A pro rata proportion of the cost of maintain-

ing and repairing the railway, to be determined by

computing the ratio which the number of miles run by

engines and cars of all classes by the St. Paul Com-

pany over the railway shall bear to the whole number

of miles run by engines and cars of all classes oper-

ated by all companies using the railway.

FE. A similar pro rata proportion of salaries paid

to certain division officers of the Rock Island. (Rec-

ord 89-93)

In connection with the improvement of the upper Mis-

sissippi, in aid of navigation, the United States constructed

a dam in the Mississippi River about one mile above Musca-

tine. This dam raised the water level of the Mississippi

River, and the Secretary of War, under express statutory

authority, filed in the district court a petition, which sought

the condemnation of a “flowage easement, extending from

dam No. 16, about one mile above Muscatine, Iowa, up-

stream to dam No. 15 at Davenport.” All actual physical

damage to the line of railroad involved occurred within

23,500 feet immediately above lock and dam No. 16 (Rec-

ord 28). As the city of Muscatine is below the dam, the

railway property at that point was not affected. (Record

33)

APA ta CA ESM as SERENA A ee ee

POLS

ersten

PRMD OME ‘ Seen a - SOREL OME SELLE $25 va 3 en Oe poe ee we 7

_

Nahant Station, at which the St. Paul Company owns ex-

tensive terminal facilities, part of which are located upon

Rock Island property, is approximately 21 miles upstream

from lock and dam No. 16. The property of the St. Paul

at Nahant was not affected by the dam. The St. Paul Com-

pany never constructed or owned any tracks, structures, or

other facilities of its own within 5 miles above the dam.

(Record 64-65) It owned telegraph and telephone wires

upon the poles of the Rock Island, which it maintained.

The Rock Island has not granted to any other company

the right to use any portion of the railway involved.

The St. Paul’s wheelage proportion of the total traffic ;

moving over the line of railway in question varies from

month to month. The average percentage of the St. Paul’s

wheelage use of the line involved from March 1, 1920, to

August 1, 1941, both dates inclusive, was 47.683%. Prior

to March 1, 1920, the St. Paul’s proportion was somewhat

less, and it was stipulated that the average percentage for

the period of time from the effective date of the trackage

agreement to March 1, 1920, would be 45% (Record 47-48),

and the average percentage for the entire period of time

from the effective date of the trackage agreement to August

1, 1941, “would be 46-3467”. An award of $127,539 was

made by the condemnation commissioners. This award

was confirmed by the district court, and paid into the regis- 1

try of that court by the United States. }

The St. Paul, Minnesota, Trackage Agreement.

On May 31, 1902, the St. Paul Company, being the owner

of a line of railroad at St. Paul, Minnesota, granted to the

immediate predecessor in interest of the Rock Island, for a

term of 99 years the

“right of use in common with the St. Paul Company,

and with such other company or companies as the St.

Paul Company shall at any time permit to use the same,

for the sole purpose of running thereon its trains of all

classes, the main track and such passing tracks of its

‘River Division’ as the St. Paul Company may from time

to time designate.”

an ait

a

oniliies

The St. Paul Union Depot Company in 1916 required

certain portions of the real estate upon which the tracks

described in the St. Paul, Minnesota, trackage agreement

were laid, for the construction of a new union passenger

terminal station. By deed dated September 18, 1916, which

recited a cash payment of $433,072.90, the St. Paul Com-

pany conveyed portions of the real estate upon which these

tracks were located to the St. Paul Union Depot Company.

The deed obligated the grantee, “at its own cost and ex-

pense,” to construct for the use of the St. Paul Company

two elevated tracks to be supported upon an earth fill, re-

tained by adequate retaining walls, and connected with the

existing tracks of the St. Paul Company. (Record 168-181)

The Rock Island received no part of the consideration paid

for this conveyance by the St. Paul Union Depot Com-

pany (Record 72), but, after the construction was com-

pleted by the Union Depot Company, at a cost to it of

$174,000, the Rock Island used the relocated tracks under

the terms of the May 31, 1902, trackage agreement. The

St. Paul Company demanded that the Rock Island pay 2%

per annum on the cost to the Union Depot Company of

elevating these tracks and constructing retaining walls.

(Record 75) The Rock Island refused to pay, and the con-

troversy was settled by a letter agreement signed by the

Vice President and General Counsel of the St. Paul and the

Assistant General Counsel of the Rock Island, dated Sep-

tember 10, 1934, and reproduced at Record 191-196. After

this settlement, the Rock Island paid 2% per annum upon

$474,174, as stipulated in Exhibit N (Record 75). The trial

court excluded all evidence pertaining to the St. Paul, Min-

nesota, trackage agreement and the construction of that in-

strument adopted by the parties, as irrelevant and imma-

terial (Record 223).

The trial court made findings of fact, and stated its con-

clusions of law in a memorandum opinion (Record 212-223).

The trial court held:

“The grant in the contract to the St. Paul was at

least an easement, and for the taking of an easement

compensation is to be paid.” (Record 214)

Beem RELIEF BELLE Me KONE

7

The court further found:

“The St. Paul introduces no evidence as to any dam-

age to the tenancy, nor to any interference with its use,

nor to any interference or damage to the easement, and,

therefore, is not entitled to any damages by the taking

or for interference with such tenancy or easement.”

(Record 215)

“I am satisfied that the St. Paul is not entitled to

damages growing out of the provisions of its agreement

with the Rock Island, unless there was in fact a taking

of the contract itself. (Record 217) * * * The St.

Paul has proven a taking of certain rights in and to

the real estate condemned, but, having failed to show

actual damages, is still entitled to nominal damages.”

(Record 219)

Both parties appealed to the Eighth Circuit Court of

Appeals, which held, on the strength of Union Pacific Rail- ;

way Co. v. C. R. 1. & P. Ry. Co. and Union Pacifie Railway

Co. v. C. M. & St. P. RR. Co., 163 U. S. 564, 41 L. Ed. 265,

16 Supreme Court 1173, and Englewood Connecting Ry. Co.

v. Chicago & Eastern Illinois Railway Co., 6 N. E. 684, 117 Il.

611, that the St. Paul had no estate or interest in the Rock

Island property sufficient to support an award of damages.

That court further held:

“The district court was correct in finding that the

evidence failed to show that the St. Paul sustained ac-

tual damages as the result of the condemnation pro-

ceeding; that the United States by acquiring the ease-

ment to overflow the property of the Rock Island has

not taken the contract under which the St. Paul has the

right to use the Rock Island property subservient to

the easement.”

The Circuit Court of Appeals concluded:

“The decree of the district court was erroneous only

in so far as it determined that the St. Paul had a suf-

ficient interest in the Rock Island property to justify

a participation in the award to the extent of $100.00.

The decree should have provided that the entire award

be turned over to the Rock Island. On remand, the

district court will modify its decree accordingly, and,

as so modified, it will stand affirmed.”

eo EN

REASONS WHY THE WRIT SHOULD NOT ISSUE.

I.

Review upon certiorari is not a matter of right, but of

sound judicial discretion, and will be granted only where

there are special and important reasons therefor.

Rule 38 of this court.

Certiorari will not be granted except in a case involving

principles, the settlement of which is of importance to the

public, as distinguished from the parties, or in a case where

there is a conflict of opinion and authorities between Cir-

cuit Courts of Appeal, or between a Circuit Court of Ap-

peals and this Court, or where the Circuit Court of Appeals

has decided an important question of local law in a way

probably in conflict with applicable local decisions, or has

decided an important question of federal law, which has

not been, but which should be, settled by this court. None

of these reasons are present in the case at bar.

Rule 38 of this court.

Layne & Bowler Corp. v. Western Well Works, 261

U. S. 387.

Hamilton Brown Shoe Co. v. Wolf Bros., 240 U.

S. 251.

Magnum Import Co. v. Coty, 262 U. S. 159.

United States v. Johnston, 268 U. S. 220.

Houston Oil Co. v. Goodrich, 245 U. S. 440.

Il.

The Muscatine trackage contract, conveyed to the St.

Paul Company no estate or interest in the real estate of

the Rock Island. Under that instrument the St. Paul be-

came neither a tenant in common nor a lessee of the Rock

Island. The St. Paul was granted no easement in Rock Is-

land property, but merely a trackage license. The St. Paul

had no estate or interest in the Rock Island property suf-

ficient to support an award of damages in its favor.

Union Pacific Ry. Co. v. The Chicago, Rock Island,

and Pacific Ry. Co., The Chicago, Milwaukee, St.

Paul Railroad Co., ef al., 163 U. S. 564, 41 L. Ed.

265.

| a IAT a Gt PIRATES St 1

AER x ore LENE SE MRT IE DREAD LORE OTT I ORC REL — —

x

Englewood Connecting Ry. Co. v. Chicago & East-

ern Illinois Ry. Co., 6 N. E. 684, 117 Ill. 611.

Stickland v. Pennsylvania Railroad Co., 154 Pa. 348,

21 L. R. A. 224.

Clapp v. Boston, 133 Mass. 367.

The interest of the St. Paul in the Rock Island property

was, at best, no more than an inchoate right to obtain an

easement under certain conditions, somewhat comparable

with the dower right of a spouse in real estate. An in-

choate right of dower does not constitute an estate in prop-

erty for which compensation must be paid upon the taking

of the property by eminent domain.

18 American Jurisprudence 862.

Matthewson v. Skinner, 66 Kansas 309, 71 Pacific

580.

7 McCullough v. Edwards Elec, Co., 165 N. W. 157

(Neb.).

III.

Both the district court and the circuit court of appeals

correctly held that the St. Paul failed to prove that its prop-

erty interests were damaged, or the extent of its damages,

; if any. Proof of damage to, or the taking of the property

of the Rock Island was not proof of damage sustained by

the St. Paul.

Omnia Company v. United States, 261 U. S. 502.

IV.

Where several contracts relating to the same general

subject matter have been entered into by the same parties,

; the construction of one instrument, or particular language

c therein, by the parties themselves is entitled to almost con-

4 trolling weight in construing the same contract, or contracts

4 of the same series, between the same parties. ;

5 17 C. J. Sec., Page 764.

; Pullen’s Will v. Pullen, 165 N. W. 25 (Wis.).

Thompson v. Baker, 203 N. W. 195 (N. Dak.).

Tilden Company v. Densten Hair Co., 103 N. E. 916.

Copenhaver v. United Fuel Gas Co., 15 S, E. 884.

Bowers Hydraulic Dredging Co. v. United States,

211 U. S. 176, 53 L. Ed. 136.

ARGUMENT.

I.

Review upon certiorari is not a matter of right but of

sound judicial discretion, and will be granted only where

there are special and important reasons therefor.

Counsel for petitioners seem to assume that their client

is entitled to a review of the decision below as a matter

of right. This assumption is clearly erroneous, and in con-

flict with the rules and decisions of this court. The pri-

mary question presented by this case is the proper con-

struction of a contract between two railway companies, in- k

volving a line of railroad in eastern Iowa. It is not even t

claimed by counsel for petitioners that any question of .

public importance is presented by this case. It is not

claimed that the decision of the 8th Circuit Court of Ap-

peals is in conflict with the decision of any other circuit

court of appeals, or with the decision of the highest court

of any state. It is not claimed that the 8th Circuit Court

of Appeals failed to follow, or apply, applicable local de-

cisions upon questions of local law. In short, the position

of counsel is that petitioners, merely because they invoke :

the Fifth Amendment to the United States Constitution, are é

entitled to have the decision below reviewed by this court. é

It may be conceded that this case involves an unusual

and interesting legal question, but even so, it does not fol-

low that the case calls for a review by this tribunal. Both

the rules and decisions of this court require that the peti-

tion for certiorari be denied.

In Layne & Bowler Corp. v. Western Well Works, 261

U. S. 387, in dismissing a writ of certiorari as improvidently

granted, this court, speaking by the late Chief Justice Taft,

said:

3 “It is very important that we be consistent in not

granting the writ of certiorari except in cases involv-

ing principles, the settlement of which is of importance

to the public as distinguished from that of the parties, j

and in cases where there is a real and embarrassing

conflict of opinion and authority between the Circuit

Courts of Appeal.”

OAL AOL Lig PT INES DINE SOL ASA GAD OIE IOTTOK L.ED ES ae OE ABN PRI hat IPG al Pe a Pee “ete MO ee etme te " .

a i is ne

ontiiin

In Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U. S.

251, this court, speaking of the exercise of its jurisdiction

to review the decisions of inferior courts by certiorari, said:

“As has been many times declared, this is a juris-

diction to be exercised sparingly, and only in cases of

peculiar gravity and general importance or in order to

secure uniformity of decisions.”

Again in Magnum Import Company v. Coty, 262 U. S.

159, this court, in discussing the exercise of its supervisory

powers over the decisions of Circuit Courts of Appeal, said:

“The jurisdiction to bring up cases by certiorari

from Circuit Courts of Appeals was given for two pur-

poses: first, to secure uniformity of decisions between

those courts in the nine circuits (now 10); and second,

to bring up cases involving questions of importance

which it is in the public interest to have decided by

this court of last resort. The jurisdiction was not con-

ferred upon this court merely to give the defeated party

in the Circuit Court of Appeals another hearing.”

In view of these pronouncements, and mindful of the

heavy responsibilities imposed upon the members of this

court, we submit, that upon the face of the petition, it

should be denied because there is no showing that the case

is of such character that the decision below ought to be

reviewed by this court, in the public interest, as distinguished

from the purely private rights of the parties litigant.

Il.

The Muscatine trackage contract conveyed to the St.

Paul Company no estate or interest in the real estate of

the Rock Island. Under that instrument the St. Paul be-

came neither a tenant in common nor a lessee of the Rock

Island. The St. Paul was granted no easement in Rock

Island property, but merely a trackage license. The St.

Paul had no estate or interest in the Rock Island property

sufficient to support an award of damages in its favor.

The decision of the Eighth Circuit Court of Appeals was

obviously right and proper, and we shall not burden this

ESL ABs ee

=— =

court with any extensive argument in support thereof. It

is fundamental, of course, that the owner of every estate

in real property appropriated by the power of eminent do-

main is entitled to just compensation therefor. It is equally

fundamental that a mere licensee, or one having only con-

tractual rights with respect to property, is not entitled to

share in an award of compensation. particularly where his

rights are in no way taken or interfered with.

The trackage agreement between the Rock Island and

the St. Paul is not a lease. This court in the Union Pacific

case, supra, stated that a similar contract, although de-

nominated by the parties as a “lease”, was “a mere running

arrangement”, or “trackage contract”. The Rock Island re-

mains at all times in full and unqualified possession of its

property with all of the rights, duties, privileges, and bur-

dens of ownership. It may extend to others the same, or

greater privileges than have been extended to the St. Paul

Company. The Rock Island makes and prescribes sched-

ules, rules, and regulations, governing the operation of the

railway. All employees of the St. Paul Company while up-

on the Rock Island tracks are at all times as much sub-

ject to the orders of the Rock Island dispatchers and su-

perintendent as are the employees of the Rock Island, it-

self. In short, the situation is no different from that which

would obtain had the St. Paul surrendered its trains to the

Rock Island for operation between the terminal points

covered by the trackage agreement.

Counsel for petitioners cite no authorities in support of

their contention that the instrument in question makes the

St. Paul a tenant in common with the Rock Island. The

cases of Englewood Connecting Railway Company v. Chi-

cago & Eastern Illinois Ry. Co., 117 Ul. 611, 6 N. E. 684, and

Union Pacific Ry. Co. v. C. M. & St P. R.R. Co., et al., 168

U.S. 564, 41 L. Ed. 265, squarely hold that contracts of the

character now before this court convey no estate in realty,

and it, therefore, follows that the using company would

have no right to participate in a condemnation award. The

decision of the Circuit Court of Appeals that the St. Paul

Company held no estate in the pronerty of the Rock Island,

which required that the St. Paul be compensated, was clearly

correct, and no occasion exists to have that pronouncement

reviewed by this court.

Eb MINERS RE NA A ELD TS AU NEL EC SEO ENS A NU SAT ON ICD Tl WAC NAPS ONE. ART PLAT AR IM IRENE PTI

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Ill.

Both the district court and the circuit court of appeals

corectly held that the St. Paul failed to prove that its

property interests were damaged or the extent of its dam-

ages, if any. Proof of damage to or the taking of the prop-

erty of the Rock Island was not proof of damage sustained

by the St. Paul.

The St. Paul made no effort to establish upon the trial

of the case that it had been deprived of the use of any

part of the railway involved. It simply took the position

that since the United States paid money with the expecta-

tion that it would be expended for the rehabilitation of

the Rock Island’s tracks, the fund should be treated as a

part of the cost of maintaining the line of railroad. The

St. Paul further urges that since it is obligated by the con-

tract to contribute to the maintenance of the whole line of

railroad, its damages may be ascertained by striking an

average of the monthly percentage proportions, paid by the

St. Paul for many years past, for maintenance and repairs.

The Circuit Court of Appeals properly rejected this con-

tention, for it is established that the St. Paul’s use of the

property has never been interfered with or denied in any

way. St. Paul trains have at all times operated over the

line of railroad involved without interference. The United

States did not condemn the contract, or the contractual

rights of the St. Paul to the use of this line of railway. By

the condemnation award the United States obtained no right

to have its trains operated over the tracks of the Rock Is-

land under the terms and conditions of the trackage agree-

ment. The contract, as both courts below properly ruled,

was, in no sense, taken by the condemnation proceeding.

The contentions of the St. Paul Company are squarely

answered by the decision of this court in Omnia Co, v.

United States, 261 U. S. 502. There, the Omnia Company

had entered into a contract with the Allegheny Steel Com-

pany, by which it became entitled to receive the entire out-

put of that corporation for the year 1918. The Govern-

ment requisitioned the entire manufacturing capacity of

the Allegheny Steel Company for the year 1918 for war pur-

poses. The property taken was that of the steel company,

=)

but the contract was not condemned. The inability of the

Allegheny Company to comply with its contract by deliver-

ing its output to the Omnia Company was a consequential

loss, or injury, resulting from lawful governmental action.

For such consequential loss or injury the Government was

not liable.

In this case, if it be conceded that the action of the

Government in flooding the Rock Island property imposed

upon the St. Paul an additional cost of complying with its

contractual obligations with the Rock Island, that was a

consequential loss or injury and not a legal damage. No

rule of law requires that the St. Paul be indemnified against

such expense by awarding it a portion of the funds paid

by the Government to the Rock Island.

The cases of International Paper Co. v. United States,

282 U. S. 399, Duckett & Co. v. United States, 266 U.S. 149,

Pumpelly v. Green Bay Co., 13 Wall. 166, and United States

v. Wheeler Township, 66 Fed, 2d 977, are clearly distin-

guishable. In the International Paper Company case peti-

tioner was entitled to the unrestricted use of certain waters

of the Niagara River, a right, which, by the statutes and

decisions of the State of New York, constituted real estate.

The Secretary of War requisitioned all of the water, and

directed that it be used to produce power for war indus-

tries. In the Duckett case a lessee of two piers of the Bush

Terminal in Brooklyn, New York, was dispossessed by the

Government. Both these cases are clearly distinguishable

from the case at bar. In United States v. C. B. & Q. Ry.

Co., 82 Fed. 2d 131, and United States v. Wheeler Township,

66 Fed. 2d 977, it was held that the raising of the water

level in navigable waters by the action of the Government

in constructing dams entitled the owner of the property

damaged to just compensation. No question of the char-

acter here presented was involved in either case.

5 census

OFS QE REE RA US Tey SE Ses Or

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NY LS Nan AN Ae ae a IR

= ' oe

IV.

Where several contracts relating to the same general

subject matter have been entered into by the same parties,

the construction of one instrument or particular language

therein by the parties themselves is entitled to almost con-

trolling weight in construing the same contract or contracts

of the same series between the same parties.

Upon the trial in the district court, respondents intro-

duced evidence, which established that at St. Paul, Minne-

sota, the Rock Island used certain tracks of the St. Paul

Company under instruments substantially identical with che

trackage agreement between Davenport and Muscatine,

Iowa. The St. Paul Company construed the St. Paul, Min-

nesota, trackage agreement as vesting no interest in the

Rock Island, for the undisputed evidence is that the St.

Paul sold the real estate covered by the St. Paul trackage

agreement and received all of the proceeds therefrom, with-

out accounting to the Rock [sland for any portion thereof.

Not only did the St. Paul Company pocket all of the pro-

ceeds from the sale of the real estate, but the record shows

that, in addition, the St. Paul Company required the Rock

Island to pay 2% per annum upon sums expended by the

St. Paul Union Depot Company to reconstruct and elevate

tracks of the St. Paul Company, and construct retaining

walls.

The trial court excluded this evidence as immaterial.

The Circuit Court of Appeals did not find it necessary to

pass upon the admissibility of this testimony. Counsel for

the St. Paul Company, in this court, invoke the rules of

equity, which they insist are applicable to a proceeding of

this character. It is fundamental, of course, that “he who

seeks equity must do equity,” and that “he who seeks equity

must come with clean hands.”

We believe that this evidence was clearly admissible;

that since the St. Paul, Minnesota, contract related to the

use of St. Paul Company tracks by the Rock Island, the

construction placed by the parties upon the St. Paul, Min-

nesota, trackage agreement was entitled to almost control-

ling weight in construing substantially identical provisions

in other contracts entered into between the same parties

- - any ~ es - - —— . eS Ae > RD IR Fp Le AP ED REISE Oe ee Ty,

a )

a SN

within a few months thereafter. If equitable principles are

to be applied, the necessary result will be that the claims

of the St. Paul to share in the fund in the registry of the

court must be denied.

{ERE ore RSS Pe Sr Raat ‘

CONCLUSION.

The petition for writs of certiorari in these cases should

be denied: &

First, because the case presents no question of pub- r

lic importance, which requires a decision of this court ;

to authoritatively determine. The question presented

is not likely to recur. The case involves no question

of public interest as distinguished from the private

rights of the parties.

Second, the decision of the Eighth Circuit Court of

Appeals was clearly correct and in accord with the only

cases on the subject. This court, if certiorari be granted,

would, of necessity, arrive at the same conclusion as

: did the Circuit Court of Appeais.

q

The decision below is right and no occasion is presented

for a review thereof by this tribunal. It follows that the

petition for writs of certiorari should be denied.

Respectfully submitted,

Marcus L, BELL,

W. F. Perer,

1025 LaSalle St. Station Bldg.,

Chicago, Illinois,

J. G. GAMBLE,

A. B. How anp,

500 Bankers Trust Building,

Des Moines, Iowa,

Altorneys for Respondents.

Bruce E. DwitNett,

1025 LaSalle St. Station Building, 5

Chicago, Illinois, >

Of Counsel.