# Transcript of Record — United States v. Idaho > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0022%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1936 - **Citation:** 298 U.S. 105 ## Text > TRANSCRIPT OF RECORD — SUPREME, COURT OF THE UNITED STATES OcTroBER TERM, 1935_ No. 420 THE UNIFED STATES OF AMERICA, THE INTERSTATE COMMERCE COMMISSION, AND THE OREGON SHORT LINE RAILRO AD COMP: ANY, APPELLANTS Vs. ‘ THE STATE OF IDAHO, AND J. D. RIGNEY, ET AL., CON- STITUTING AND AS THE PUBLIC UTILITIES COMMIS. SION OF THE STATE OF IDAHO APPEAL FROM ‘THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF UTAH 4 FILED SEPTEMBER 14, 1935 . ‘SUPREME COURT OF THE UNITED STATES . OcToBER TERM, 1935 No. 420 THE UNITED STATES OF AMERICA, THE INTERSTATE COMMERCE COMMISSION, AND THE OREGON- SHORT ‘LINE RAILROAD COMPANY, APPELLANTS - vs. THE STATE OF IDAHO, AND J. D. RIGNEY, ET AL., CON- STITUTING AND AS THE PUBLIC UTILITIES COMMIS- SION OF THE STATE OF IDAHO | ; \ — APPEAL FROM THE DISTRICT COURT OF THE UNITED ——— FOR ; THE DISTRICT OF UTAH INDEX Original Print Recoad from D. C. U. 8., District of Utah.................-.-.-.- 1 1 Caption fomitted in printing].~{ .......................... 1 1 er eee pasebesnboaqeestose 3. 2} Exhibit A—Report of I. C. C., Finance Docket No. 9096 - 8 5 BE Gt Gs Sine dcccccancencoccenesssesbosaghes 22 13 I GE os Ge Ginwecidnncnccccccccesensccascendssethaese 24 14 Answer of Oregon Short Line R. R. Co pnteeeucsananniamanen 29 17 Be GE GF Gin occcncccecteecncebecnceceghaanesecs 31 18 a eaeniaah 330 ss«a19 Defendants’ exceptions to proposed findings and decree -----.-. 43 25 Findings of fact and conclusions of law... .-..........-.--.-- 44 26 Pe ncqoccbccccqnncaccssenqenensodacescassasstesneuce 51 31 Stipulation re transcript of record and collar thereon.......-.- 54 32 Narrative statement of evidence before I. ©. C., Docket No. P SNic nai oc uhh arden Related Am eathiaacmeaeae esneionl 58 34 Appearances-_.........- GL. akédshesuseueesepadonawnel 58 34 Testimony of— ° : GOSS Tl. BE cnccocaqcedegnscccccosscensceas -. 50 - 39 Ge Ge Bein cccncnscucsscuccsnctqnenenescncesdes 82 49 ne ee Te 84 50 Te ee Ei catensictntseisesiosneenene 88 53 87542—35-—1 t u* , INDEX Record from D. C. U. 8., District of Utah—-Continued.: + ; Narrative statement of evidence, etc.—Continued. Testimony of—Continued. / Original Print P Mérris H. Brown, Fe, Ce ‘diigo 89 53 ' RR. Whippreeht....:.0 22-2222 nnn enon enn e ne ee 92 55 George W. Edgington---.--- -- quasedudugesassshaon 102 61 i, Sais hae boddkenbenenabapens paemanianieeali 104 63 Bis Gh Bs caccsoucccenccsnstecccgecccsecnss= 104 = 63 BE BA) Beiidcancncckedcbundaseacesndnensaenes 105 63 /. 2 Sa ee ee bequctecene 110 66 Bi EE iinsctcdddccasgnubnnapeanscoamnite lll = 67 . Goanns GS, Bit a. nn cnetesccnses sishaiiapiiaaaldoigeasal 112 68 GC, Bh. Pn cc ccceacenseccnceescsccers Rasascistintbas 113 - 68 Bs Sh Ci rccicawckscnhadhncsbesacaeacaniee 115 70 GN Ge Gn encccccnsesiscncsescccsscssisas 11972 The We MEIER cnesccccvaroncacccetqeceasccoades 123 75 © iti ckicvencsadcccsonsnencakdentawa - 138 84 PED DE cnncndtencasecccestecencsascnaes 141 86 . Gases Be PEPER cqccctcecccoccscccencsccesccace 169 103 . Eugene McAuliffe_----- enciiaaiannnide seissaataiibaaimts 173 106 M. Reese Hattapaugh..-...:.....-.-.-...---..-- 174 106 B, Tis We ecntencacsndm aaa a on. Re ' 174 106 ET ET ata eh A AED 181 110 EW ckaaddbenienotiotschagaaunmeeuseand’ 182 1ll ic natcondnectnatntnnncamnnhonneen 184 112 H. O. Whitney_--.--- agpdteaSnnoscasacapesceseses 196 119 Si eect cannpaennsdiianicmmediediconde 198 . 120 A. Mi. Wilde @ctalled).:.......5....,.....-......- 199 121 AGING PERM nccccecsencsencccasgscscescsces 200 122 i SE titchidcccptbctuanpinsnainananeniie 217 +=133 itn ciedpcenandcdineadetinensobans 226 6138 I nis sack eesinces tactimatsiedsiaetienintignaioninininaita 230 =8=6140 Sl Rc ninnintcengienbcinnaiaiiacepdemnnaaahangen 244 149 i eae 250 . 153 Recital as to— ici didenbhanndhdneiaameie Linnea tdehhmiinann 251 153 NN 252 154 Exhibit 22—Order No. 957 of Public Utilities Commision . OE , GD Be. Pc ccicinadcincancsenscosdmaba é 255 157 Exhibit 23—Receiver’s deed, Oct. 23, 1931_......---2-. . 277 177 Recital as to— Exhibit kk re ears ee he 284 182 SIT scisnccisatint nee. etaieeadatherasaaenkitcaninientoienanghciindn otal 285 182 , SINT Tis id osc det. cidisisasinnsiepnbstliinipdettgin dhebaaakepemmigaaiasints 286 «86183 iis iccinmne citi Mibintumasthtibamnegmiine menage 294 188 Exhibit 31—Statement peer coal prodyced from Gem hs ° State Co. Mine, etc., April to November, 1932____--_-- 295 189 Exhibit 32—Profit and loss account of Gem Co. for period Sept. to Nov., inc., 1932__......_-- Diiiantiabnians 296 . 189 Exhibit 33~—Statement of Oregon Short Line R. R. Co.— ; Cars and tons of coal shipped from Talbot and/Wygert, Idatio, ete., for eleven months ended Nov. 30, ¥032 agihed 297 190 ° * INDEX c es Record ftom D. C."U. 8., District of Utah—Continued. Narrative statement of evidence, etc. — Continued. : Original Print Exhibit 42—Statement showing. annual constructive reve- nue and expenses of Talbot Branch, etc. —Oregon Short FARO. nc acccesccccccepescadacccccscccesqececdessce 298 Exhibit 43—Financial dalnmant of Gem State Co. Dec. 1, 1088... ......22222.2-28.24---25---- pleaquesas 299 Nairative statement of evidence i in D. C. U. 8 Reisaasd aisigaiiaie 301 Appearances---.--------->-------------------------- 301 Testimony of—. : Ailen Bathh.. .cccansceccoccatsascsccbccsccesccses 301 Chastes H. Davie. .....- » ae i on PO ee re ee, oer - aver fiers ne et Si cae a ste Si Sica se ke SRA ahaa eRe. Mihi Goi 3 Side ates Nee emi xg . % . . : ° 7 ‘é . 2 . - s } oO? “pr, Poa UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. 13 made only for a period of one year and can be again increased at any time after that period. : The Talbot branch serves the only coal mines in Idaho. The in- sistence of the protestants that they-now are in a position to pro-— duce a substantial volume of tonnage for the line leads us to betieve that a further trial period should be granted. Accordingly, our certificate herein will permit abandonment: of regular operation of the Talbot branch effective 30 days from its date and the complete abandonment thereof 15 months from sajd date. Under this per- mission the applicant will be required to send a locomotive to the mines at any time that notice is given by the shippers that not 21 less than five carloads of coal are ready for movement. Subject to the above requirement, we find that the present and future public convenience and’ necessity permit the abandon+ ment by the Oregon Short Line Railroad Company of regular oper- ation of the branch line known as the Talbot branch, in Teton County, Idaho, described in the application, effective from and after 30 days from the date of our certificate herein, and abandonment of said branch line from and after 15 months from said date. Suitable . provision will be made for the cancelation of tariffs. [File endorsement omitted.] 22 Ex Unrrep-Srates District Courr 2" Answer of United States of America Filed Nov. 6, 1934 _ United States, one of the above-named defendants, for answer to’ the complaint filed herein against it says: ~ I United States admits for the purposes of-this suit that the facts set forth in the opening paragraph’ and in paragraphs I to VIII, inclusive, of the complaint are true. » «4 a % if United States denies the matters, things and conclusions alleged in paragraph IX of the complaint, and denies that said certificate of ‘public convenience and necessity isued by the Interstate Commerce Commission* ofy November 29, 1933; is umlawful, void or illegal for the reasons alleged in said paragraph IX, or for any other reason. , Ill Answering paragraph X of the complaint, United States admits that this Court, when specially constituted of three judges as re- quired by Urgent Deficiencies Act, 38 Stat. 219, has jurisdiction of this suit. ‘ 37842—35——2 “pho A RAC Nate SNE aE Rl Nm Sol , TaN Soe ER Sy 14. UNITED STATES ET AL. VS. STATE,OF IDAHO, J. D. RIGNEY, ET AL, ‘iV | United States admits the truth of the allegation in n paragraph XI of the complaint. V is Answering paragraph XII, United States admits that said cer- tificate of the Interstate Commerce Commission authorizes and per- mits the Oregon Short Line Railroad Company to abandon after fifteen months from November 9, 1933, its branch, which is de- scribed in the Commission’s report, annexed as Exhibit “A” to the complaint, but United States has no knowledge as to whether the Railroad Company will avail itself of such authority and permission. 3 VI United States denies the allegations of paragraphs XIII and XIV, and particularly denies that plaintiffs will suffer irreparable or any legal injury whatever for the reasons alleged:in said paragraph XIII, or for any other reason arising or resulting from the Commis- . sion’s said certificate of November 9, 1933.. Vit Except as herein expressly admitted United States denies each and every allegation of the complaint, and of the several paragraphs thereof. Wherefore, having fully answered the complaint, United States prays that the. relief therein prayed be denied and the complaint dismissed with costs to the plaintiffs, and that it have the benefit of ~ such other and further orders, decrees or relief as may be just and proper. . . ad Ever B. Cottins, Special Assistant to the Attorney General. Harotp M. STerHeENs, Assistant Attorney General. Danie B. SHIELps, United States Attorney. [File endorsement omitted. ] 24 | In United States District Court Answer of the Interstate Commerce Commission Filed Oct. 23, 1934 The Interstate Commerce Commission, defendant in the above- entitled suit, now and at all times hereafter. saving and reserving to itself all and all manner of benefit and advantage of exception to the tm UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET al, 15 ‘many errors and insufficiencies in the plaintiff’s bill of complaint contained, for answer thereunto of unto so much or such parts thereof as it is advised that it is material for it to answer, answers and says: a | Answering the opening paragraph and paragraphs I to VI, inclu- ‘sive, of the bill of complaint, the Commission admits, for the pur- poses of this suit, that the allegations therein contained are true. II Answering paragraphs VII to XIV, inclusive, of the bill of com- plaint, the Commission admits and alleges that it made and entered the report, dated November 29, 1933, referred to in the bill of com- plaint and made a part thereof as Exhibit A, in a proceeding then pending before it entitled Finance Docket 9096, Oregon Short Line Railroad Company Abandonment; that said proceeding was insti- tuted by the Commission following the filing of an application with it on January 4, 1932, by the Oregon Short Line Railroad Company, under Section 1 (18) of the Interstate Commerce Act, wherein that~ carrier sought permission to abandon a branch line of railroad known as the Talbot branch, extending from Talbot Junction southwesterly to Talbot, 9.053 miles, in Teton County, Idaho; that full hearings were had thereafter; that a proposed report was then prepared by a Commission examiner, recommending that the Commission find that public convenience and necessity. permit the abandonment of 25 the branch in question by the Oregon Short Line Railroad Company, that exceptions to this proposed report were filed with the Commission by, the State’ of Idaho and by the Gem State Coal Mining Company; that thereafter, upon petition fora further hearing by the Gem State Coal Mining Company, one of the protestants in the case, the Commission reopened the case and conducted a further hearing on December 15, 1932; that there- after a Commission examiner, following the rehearing, issued a pro-~ posed report again recommending to the Commission that they find that a certificate of public convenience and necessity be issued permit- ting the Railroad Company to abandon the branch in question ; that thereafter exceptions to this proposed report were filed by the Public Utilities Commission of the State of Idaho and by the Gem State Coal Mining Company and Superior Coal Company; that thereafter, on October 24, 1933, the proceeding came on before Division 4 of the Interstate Commerce Commission for oral argument; that there- after the COmmission made .and entered and served upon all the parties in said proceeding, the report and certificate of November 29, 1933, hereinbefore referred to, attached to and made a. part of the complaint as Exhibit A, to which the Commission respectfully refers the Court for information concerning its findings and requirements in the premises; that in said proceeding the parties thereto, including P ae EEA LTE PL A PIM EE ITE EN NEED UC LOE to RE aren 16 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, the plaintiffs herein, were and each of them was, accorded the full hearing provided for by the Interstate Commerce Act; that in said hearings a large volume of testimony and other evidence bearing upon the matters covered in said report and certificate was submitted to tle Commission for consideration; including testimony and other = evidence submitted on behalf of plaintiffs herein by their counsel; that at sdid hearings and subsequently both orally and in briefs filed in said proceedings, questions relating to said matters were 26 fully argued and submitted to the Commission for determina- tion on behalf of satd parties by their respective counsel, includ- ing many of the particular questions raised by plaintiffs in this suit, whereupon the Commission determined said matters and entered and served: upon all the parties to said proceeding, including ‘the plain- tiffs herein, its said report and certificate; that said report and certifi- . cate included the Commission’s findings of fact, decision, conclusions, order and requirements in the premises, and that, upon ‘the evidence. -~ aforesaid, and as shown in-ard by said report, the Commission made » the findings and stated the conclusions upon which said report and \ certificate are based. The, Commission further alleges thit the findings and conclusions in said report were and are, ar -ach of them was and is, fully supported and justified by the e dence submitted in said proceeding as aforesaid. The Commission further alleges that in making said’ report it con- sidered and weighed -carefully, in the light of its own knowledge and experience, each. fact, circumstance, and condition called to its atten- tion on behalf of the’ parties to said proceedings by their respective counsel, including matters covered by the allegations of the bill of complaint herein. The Commission further alleges that said report and certificate of November 29, 1933, were not made or entered either arbitrarily or unjustly, or contrary to the relevant evidence, or without evidence to support them; that in making said certificate the Commission did not exceed the authority which had been duly conferred upon it, and the Commission denies each of and all the allegations to the contrary contained in the bill of complaint herein. Further answering paragraphs VII and VIII of the bill of com- plaint, the Commission admits that the allegations therein 27 contained are true. Further answering paragraph IX of the Bill of complaint, the Commission denies that its said certificate of November 29, 1933, is invalid either for any of the reasons set forth in said paragraph, or for any other reason or reasons. | Further answering paragraph X of the bill of complaint, the Com- mission admits, for the purposes of this suit, that the gts contained therein are true. Further answering paragraph XI of the bill of complaint, the Commission alleges that the statement contained therein is a con- clusion of law to which .it is not required to make answer. In this iat ee ier ty RR ae oS 2. re 4 a) MS ah. * 2 € ia P: pee Piet, SHAaES cl oh oe eh KF 3. Rat dates ata vases. , 7 = ; rar Sot fs UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. 17 ° connection the Commission admits, however, that the venue of the suit has been properly laid. : Further answering patagraph XII of the bill of complaint, the Commission denies that the track referred to therein is a spur track within the meaning of paragraph (22) of Section 1 of the Interstate Commerce Act. | 7 Further answering paragraph XIII of the bill of complaint, the Commission denies that its certificate of November 29, 1933, causes plaintiffs irreparable damage or any damage, and denies that plaintiffs will suffer irreparable damage or any damage if said certificate is not . stayed and enjoined. Further answering the allegations of the bill of complaint; the Commission denies any authority on the’ part of a single judge to grant any of the relief prayed for in the bill of complaint. The Com- _Inission alleges that the following corrections should be made in Exhibit A, attached to and made a part of the bill of complaint: On sheet 4, line 8, insert the word “ was ” between the words “ wye ” and “constructed ”; on sheet 5, line 5, change “ude” to “due”; 28 on sheet 10, line 12, change “$186 for 1930” to read “ $1,866 for 1930”; and ou sheet 10, line 18, after “1927”; insert “ $4,553 in 1928, $13,980 in 1929, $4,449 in 1930, $1,919 in 1931.” Except as herein expressly admitted, the Cammission denies the’ truth of each of and all the allegations contained in the bill of com- plaint insofar as they conflict either with the allegations herein, or ‘with either the statements or conclusions of fact included in said report and certificate of November 29, 1933, which. report and certifi- cate is hereby referred to and asked to. be made a part hereof. _ All gf which matters and things the Commission is ready to aver, Maintain, and prove as this Honorable Court shall direct, and hereby prays that said bill of complaint be dismissed. | Interstate ComMMERCE Commission. By Epwarp M. Rempy. Dantet W. Know tron, . Chief Counsel, of Counsel. [Duly sworn to by Balthasar H. M eyer; jurat omitted in printing. ] [File endorsement omitted.] 29 , In United States District Court Answer of Oregon Short Line Railroad Company Filed Nov. 27, 1934 | Comes now the Oregon Short Line Railroad Company, one of the above-named defendants, and answering plaintiffs’ complaint on file herein admits, denies, and alleges as follows, to wit: 1. This defendant admits for the purposes of this suit that: the facts set forth in the opening paragraph and in paragraphs I to VXI, inclusive, of the complaint are true. . 18 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. 2. This defendant denies the matters, things, and conclusions al- leged in paragraph IX of the complaint, and denies that said cer- tificate of. public convenience and necessity issued by the Interstate Commerce Commission on November 29, 1933, is unlawful, void, or illegal for the reasons alleged in said ‘paragraph IX, or for any other reason or at all. _ 8. Answering paragraph X of the complaint, this defendant ad- mits the allegations thereof. . - 4. This defendant admits the allegations of paragraph XI of the complaint. . 5. Answering paragraph XII of said complaint, this defendant admits the allegations thereof. 6. This defendant ‘denies the allegations of paragraphs XIII and XIV, and particularly denies that plaintiffs will suffer irreparable or any legal injury whatever for the reasons alleged in said para- graph XIII or for any other reason arising or resulting from the Interstate Commerce Commission’s said certificate of November 29, 1933. 7. This defendant denies each and every: allegation contained in- said complaint not hereinbefore expressly admitted. Wherefore, having fully answered the complaint, this defendant prays that said complaint be dismissed and that it recover its costs herein expended. 30 Gerorce H. Smirn, | Rost..T. Porter, W. Hau Fark, H. B. THompson, Solicitors for Defendant Oregon Short Line Railroad Compaiy. Copy of the foregoing received this 27th day of November 1934. H. Van Dam, JR, Attorneys and Solicitors for Plaintiffs. Copy of the foregoing received this 27th day of November 1934. Dan B. SHIELDS, Attorneys for the United States of America. ° [Duly sworn to by Robt. B. Porter jurat omitted in printing.] - [File endorsement omitted. | ; 31 ' In United States District Court Minute entries of trial MINUTE ENTRY OF OCTOBER 27, 1934 . At this 27th day of October 1934 defendants appearing by R. B. . , Porter, its solicitor, and motion to dismiss heretofore filed was sub- mitted without argument giving defen‘ant three days in which to prepare and present brief and plaintiff five days thereafter in which to prepare and present reply brief. “e « _ UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET.AL. 19 /. * MINUTE ENTRY OF NOVEMBER 10, 1934 At this 10th day of November 1934 pursuant to stipulations filed November 7, 1934, it is ordered that plaintiff be given to and includ- ing November 16, 1934, in which to file brief. MINUTE ENTRY OF DECEMBER 15, 1934 To hear and determine the application filed herein of the above named plaintiff, thé Honorable Sam G. Bratton, Judge of United - States Circuit Court of Appeals, Tenth Circuit, and the Honorable John Foster Symes, United States District Judge for the District of. Colorado, are hereby called to assist the Judge of this Court and said cause is hereby set down for hearing in Salt Lake City, Utah, on the 7th day of January 1935, at ten A. M. MINUTE ENTRY OF JANUARY 7, 1935 At this 7th day of January 1935 plaintiffs appearing by Ariel L. Crowley and Maurice H. Green, their solicitors, de- 32 fendants, United States of America and Interstate Commerce Commission by Edward M. Reidy, their solicitor, and the Ore- gon Shortline Railroad Company by R. B. Porter, its solicitor, and this cause came on.for trial before the Honorable Sam Gilbert Brat- ton, Honorable Tillman D. Johnson, and Honorable John Foster * Symes, Judge Bratton presiding. Attorney M. H. Green was entered as Attorney for the State of Idaho and the motion to dismiss of de- fendant, Oregon Shortline Railroad Company was waived and de- nied. Certain documentary evidence was introduced and stipulations made in open Court. On the part of plaintiffs C. H. Davis and H. F. “Samuels were sworn and éxamined and Allen Proh was ‘sworn, and plaintiffs rest. Defendants rest. The Court heard the arguments | - of counsel and took the case under advisement, briefs to be furnished by all parties within two or three days. 33 rat In United States District Court Before Bratton, Circuit Judge, and Jounson and Symes, District Judges. : ; Opinion - Filed March 8, 1935 Symes, District Judge, delivered the opinion of the Court. This is an action by the State of Idaho Sind its Public Utility Commission, against the defendants, the United States, the Inter- state Gommerce Commission, and the Oregon Short Line Railroad, to set aside and vacate an order of the Interstate Commerce Com- mission granting, on the application of the railroad company, its certificate to abandon. 9.053 miles of railroad, all located within - 2 sins Sb iM ehetie ae Pires a eae gene TIRE ag RI MATE EL me A De RR PRUETT TC Oe ee tite ae Bing oh ar oe natal Ste ee ee oot SE Oma oars ity SOOT. . it Bis OS a ~ > d : , oS AS Ee alee ES. e 20 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, he State of Idaho. The order becomes effective fifteen months “Tse its date. 193 I. C. C. 697. Sec. 41 (Subd. 28), Tit: 28 U. S.C. A. (Jud. Code, Sec.+24, as amended), vests in the District Court of the United States, juris- diction of cases brought to enjoin, set aside, annul, or suspend in - whole or in part any order of the Interstate Commerce Commission. Sec. 46, Tit. 28 U. S. C. A. (Jud. Code, Sec. 208), authorizes the making of the United States a party, and Sec. 47, Tit. 28 U. S.C. A. (act of October 22, 1913, Chapt. 32; 38 Stat. 220), requires such suits to be heard by a three-judge court. The venue of the suit is gov- erned by Sec. 43, Tit. 28 U.S. C. A. (Act of October 22, 1913, Chapt. 32, 388 Stat. 219). See also Colorado v. United States, 271 U. S. 153. 34 ‘The case is submitted on the record made before the Com- mission. The facts are undisputed. Some testimony was given Before this Court, which merely amplified evidence already in the record. The railroad company on January 4, 1932, applied to the Com- mission for permission to abandon the nine miles of track in ques- tion, known as the Talbot Branch, extending from Talbot Junction, a station on applicant’s St. Anthony branch southwesterly to Talbot, all in Teton County, Idaho. The application was opposed by the State of Idaho, its Public Utility Commission, and certain other in- terests who intervened. Hearings were held May 16th and 17th, 1932, and a further hearing on December 15, 1932. The matter was orally argued on October 24, 1933, before the Commission, and on _ November 29, 1933, the Commission issued its certificate permitting the abandonment of regular operatior. effective after 30 days, and abandonment after 15 months. It is this certificate that the plain- _ tiffs here complain of. This line -was built by the United States Railroad Administra- tion in 1918-20 to‘serve the goal mines at Talbot, while the rail: road was under Federal control, pursuant to a contract with the owners. of the mines. It runs through a mountainous, sparsely set- led district in eastern Idaho. The grade of the last two miles jis over two percent, and the topography forbids any further exten- sion. The total-cost was $300,000, of which the coal company agreed to pay a part, and also to furnish the right-of-way on the under- standing that the railroad company could tear up the tracks in the event the coal company failed to supply a minimum specified ton- nage. The terms of the contract resulting in the construction indi- _ cate that the line was built exclusively to serve only the mines 35 in question. Due to a receivership and litigation, no coal was shipped over this line for the first four years. after its completion. On June 26, 1924, the Public Utility Commission of Idaho, on application of the coal company, and over the objection of the rail- - road company that this track was a branch, held it to be a spur, and UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. 2]. tain repairs, including a wygsat the mine for the turning of en- gines, on condition that the ai company put up a bond for $27,160, the estimated cost of the wye, and that it would ship 29,920 tons of coal a year for five years. This york was done as ordered, but only.a little over 21,000 tons of coalAvas shipped during the follow- ing five years. ; In 1927 the mine was again forced into receivership, which con- tinued until 1931, when it was sold to a new owner, and in turn became the property of the Gem State Goal Mining Company, the present owner, subject to a judgment for’$21,000 arising out of the construction of the wye. In October 1932 the property was sold to satisfy a judgment on labor liens. so The record shows that shipments in carloads originating on this line were 935 carloads over the nine-year period, 1924-32, inclusive, all of which was coal, except 60 carloads; of which 26 were wheat, .12 hay, and 8 potatoes. No wheat has been shipped since 1928. - During 1932 only 4,346 tons of coal were produced, of which 1,220 went out by truck. This district has good roads. - , It further appears that at no time has there been a train sched- ule or regular service of any kind over this line. The railroad com- pany maintains no buildings, loadiAg platforms, or agents at any point on this line, and has no telegraph line, express, passenger, or mail service. Whenever the mine company desired cars it 36 would telephone the order over its own private telephone line to the Junction and the next triweekly train which operates over the main branch line would be stopped at the junction point, the train broken up and empty coal cars pushed by the engine up to the mine and there spotted; the engine would then hook on to the rear of the loaded cars and back down this line to the station, the loaded cars switched into the main train, which would then resume its trip. The bills of lading for cars of coal’from the mine are made out by the mine company. There are ‘practically no ship-' ments of any kind in the other direction, the few supplies for the mine being sent up in the empty cars as the same were ordered. The tax returns made by the railroad to the State for the years 1919 to 1925 show that the latter did not report the line here in question as a branch line, but on the contrary reported it in 1928 as a spur. After the State commission had asserted its jurisdic- tion by the order of June 26, 1924, supra, this particular piece of track was returned by the railroad and assessed as a branch line. . Three other companies have mined very small amounts of coal near Talbot in recent years. Coal from these mines was either trucked out from the mines.or loaded on wagons and hauled tg Tal- bot and shoveled into cars. It also appears that the few farmers tributary to this line haul their produce to the main line, the only . exception being that on rare occasions some merchandise broker would buy enough wheat, etc., to make a carload, and load it at a ordered the railroad company 9: commence operations and make cer- Ba NE St 3 Bis ara abltoiae aaa he Maa Ree ince 22 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, point called Dygert, half- -way up the line where there was — a switch track. The Commission, in its report, finds the shove facts and reviews at som¢ length the mining operations in this territory, points out the physical difficulties of mining this particular coal successfully, 87 except on a very small scale, and in regard to safety that the . mine “ appears ‘to be operating under conditions that would be held unsafe in States where there are statutes regulating the: operation of coal mines.” And in respect to the protéstants’ claim that there is a good market in eastern Idaho for all the coal that can be produced in these mines, the Commission said such. prospects were “uncertain.” Both the mines and this line have always shown — operating deficits. The bill of complaint raises the only. question before this Court, to wit: Was ‘the Interstate Commerce Commission without jurisdiction . to hear and determine the matter, for the reason, as alleged, that the line in question was a spur, or industrial track, lying wholly within the State.of Idaho, as distinguishedfrom’a branch, or extension of the line of the defendant railroad. The answer.to this question de- pends upon the character of this piece of track. The Transportation Act of 1920, Sec. 1, Tit. 49 U. S. C. A. (Chapt. 91, Sec. 402, 41 Stat. 456, 477-8, provides, Par. 18-22, incl.):“* * * no carrier by raik | road subject to this Act shall undertake the extension of its line of railroad * * * unless and until there shall first have. been ob- tained from the Commission a certificate that the present or future public convenience and necessity require or will require the construc- tion * * * of such extended line * * *” Paragraph (22):: “The authority of the Commission (so) conferred * * *- shall _ hot extend to the construction * * * or spur, industrial, team, switching or side tracks,» * * * to be located wholly within one State * * *” Paragraph (20): “Any construction * * * contrary to the provisions * * * of paragraph (18) * * * may be enjoined by any court of — jurisdiction at the suit of * * * any part in interest.” The Supreme Court in Texas & Pac. Ry. v. Gulf, ety., :Ry.. 270 ‘U.S. 266, holds that the district courts have jurisdiction to decide the issue whether the track is an extension rather than an industrial track excepted in par. 22, supra. In Interstate Commerce, Commission v. Union Pacific, 222 U. S. 541, the Court said that in determin- 38 ing these mixed questions of law and fact the Court confines ‘itself to the ultimate question as te whether the Commission acted within its power. “It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling.” See also U. S. v. New River Co., 265 © U. S. 543. This question has been before the Federal Courts many times and ~ the decisions are too numerous to cite. Each case} of course, turns ane its own particular facts. The leading ease cited in support _ UNITED STATES ET AL, VS, STATE OF IDAHO, J. D. RIGNEY, ET AL. 23° of the action of the Commission is Texas and Pac. Ry. v. Gulf, Etc., Ry., supra, the facts of which were wholly unlike those here pre-_ sented. There the Santa Fe, without obtaining a certificate from » the Commission, proposed to. build into territory adjoining the City of Dallas, known as the Industrial District, containing cement works, oil refineries and metal works. . This district produced a great vol-- ume of carload traffic, and all its industries were already served by, and located on, the‘line of the Texas Company, or connected there- with by spurs. It was not disputed that the latter railway com- , pany. was affording ample railroad facilities. The Santa Fe had no line running near to, or in any part of this Industrial District, but proposed to bufld a line 714 miles in length, including spurs, sites, and other subsidiary tracks. As the Court states, manifestly, it was ‘an attempt to compete with the Texas Company for this very lucra- tive business, and deprive the Texas Company ‘of their monopoly thereof. | ip . s The Court held the proposed line not a spur in the sense in which that word is commonly used; that the building of unnecessary lines, such as the one in question, involves a waste of resources, and that the proposed. competition between carriers would result in harm to the public; that when one railroad inflicts injury upon its rival 39 “it may be the public which ultimately bears the loss.” That. spur, industrial or switching tracks, etc.; as defined in par. 22, were those commonly constructed either to improve the facilities re- quired by shippers already served by the carriers, or to supply facili- ties to others, who being within the same territor'y, are entitled to like service from the carrier. “The question’ whether the construction ‘should be allowed or compelled depends largely upon local condi- tions which the state regulating body is peculiarly - fitted to appre- ciate.” The opinion then points out that where the roposed track- age extends into territory.not theretofore served by the carrier, and _ particularly where it extends into territory already served by another carrier, it becomes a matter of national concern. It would seem that the undisputed facts before us require a hold- ing that the piece of track to Talbot was merely a spur. That it was built to serve a single industry only is demonstrated by the contri- bution required from that industry to its original construction, and the bond exacted a few years later as a condition to the.order for resumption of, service ant the making of certain improvements. Practically no other industry is served, nor does it extend into new territory. The fact is, the,country is so sparsely settled, and the topography such, that any further extensions are not justified. So, ‘clearly, it is a case of purely local, as distinguished from national. concern, which, as the Court’ said, supra, the state body can more properly regulate. iu Pee | Ip abandonment of Line by Missouri Pacific R. Co., 76 I. ©. C. 635, the Commission held a track two and two-tenths miles long to Seep RES. RA Sa NeSAR oT . Pe 24. UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, ‘ . be a spur, because its sole purpose was to haul carload shipments of ‘stone from certain quarries to the railroad’s main line. And like- wise in Public Convenience Application of the Western Pacific R. Co., 67 I: C. C. 135, a proposed line was held to be a spur, the sole purpose of which was to reach certain tracts of timber “not at present accessible to any line of railroad.” 40 \ Most all the cases cited in support of the jurisdiction here assumed by the Commission present a state of facts similar in principle to Texas & Pac. Ry. v. Gulf, Eté., Ry., supra. In Ac- quisition by Iberia & Vermilion R. Co., 111 I. C. C. 660, the Com- mission held.a line 12 miles long to be a branch and not a spur, because it was to serve a large community, as distinguished from a.single industry. In Detroit & M. Ry. Co. v. Boyne City, G. & A, R. Co., 286 Fed. 540, a track 334 miles long was held to be an extension rather than a spur. It was fo be used for continuous trans- portation service by full trains, and was to have loading stations for use by the publig for other commodities, and made competition with another railroad serving the same industry. Another instance of am extension is E] Dorado’& W. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 5 F. (2d) 777, in which the proposed extension was to afford a connection with the tracks of another railroad for the ex- change business and operation of through trains carrying inter- state freight. Another example on a sfmilar state of facts is Mis- souri Pacific R. Co. vy. Chicago, R. I. & P. Ry. Co., 41 Fed. (2d) 188, where the new line was to be projected across the tracks of another line, thus interfering with the latter’? efficient operation, * and invade territory already served by another railroad, thus lessen- ing the latter’s business. o In. a late case in the Supreme Court, Texas R. ‘R. Co. v. The North Side Belt R. R. Co., 276 U.S. 475, the Supreme Court said the purpose of pars. 18 to 22 of “Transportation Act was to prevent * interstate carriers from weakening themselves by operating super- fluous lines, and to protect them from competition by other carriers. In Alabama R. R.. v. The Jackson R. R., 271 U. S. 244, the __ 41 question was whether a connection between the lines of two railroad companies was an extension. The Court held it was, because the proposed junction was between the main lines of two: railroads and amounted to the establishment of through routes and the interchange of car services, and was but a step toward the joint --use of tracks, over all of which matters the Commission had ex-.- clusive jurisdiction. _ The decisions of the Federal Courts seem to turn on several fac- ‘tors, no one of which is controlling. Extensions that invade com- petitive territory and divide business with another carrier, that serve more than oné industry, a small community, or which are used by the public generally; short pieces of track connecting two different rail- roads, so as to afford through lines, or joint use of tracks; or any piece of track serving a large industry or small community, the ex- — ———————— UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. 25 pense of operating which is so large as to be an undue burden on. or affect the ability of the carrier ‘to perform its duty as an interstate carrier; or lines into new territory are factors, one or more of which are present in the cases held to require a certificate from the Inter- state Commerce Commission. None of these’are present in the case at bar. During the 14 years that have elapsed since the bailding of this line, it has been demon- strated that the volume of traffic is inconsequential and ‘uncertain, with no reasonable expettation that it will ever increase, or that the line will be of services to other industries or the public generally, nor is it capable of extension. We also give weight to the facts that the track was originally financed in part by a single industry,*and that the order of the State Commission in 1924, ordering the resumption of service, was conditioned upon the furnishing of a minimum 42 amount of business, and a bond required to cover the cost of -the new improvements. The record also shows that the financial burden on the railroad company has been negligible, inso- far as it affects its ability to perform its duties as an interstate carrier. ns We conclude on this record that the question before the Commis- sion, and involved here, concerns the abandonment of a spur, of in- dustrial track within the meaning of Sec. 22 of the Transportation Act of 1920, and that the Interstate Commerce Commission lacked jurisdiction in the premises. The order appealed from should be enjoined, set dside and an- | nulled, and It is so ordered. March 8, 1935. [File endorsement omitted.] Pd 8 In United States District Court Defendants’ exceptions to proposed findings and decree nN Filed April 8, 1935 Come now the defendants and objeet to the Findings and Decree heretofore proposed by the plaintiffs in the above entitled matter and offer the following amendments and exceptions: . iy }. On p 1 of the proposed findings of fact, line 5, after the words “for“@nd on behalf of the plaintiff” insert the foHowing langiage: “over the objection of defendants.” 2. On page 3 of the proposed findings of fact eliminate the last eight lines of paragraph 2. 3. Eliminate paragraph 3 of the conclusions of law for the reason that there is no statement in the opinion of the court covering such matters and they are statements of fact rather than conclusions of law, and further that the matters contajned in said paragraph 3 are covered in paragraph 4 of said proposed conclusions of law. s* 26 UNITED STATES ET AL. VS. STATE OF IDAHO, J: D. RIGNEY, ET AL, 4. Strike from said decree all of page 2 thereof except the last two lines, for the reason that it is unnecessary to set out said order in full but simply to identify same as is —* done on page 1 of ' said proposed decree. Groror H. SMITH, Rosr. B. Porter, > W. Hat Farr, " Be. BB. THOMPSON, _ Attorneys for Defendant Ovtipiis Short Line Railroad Company. opere E ai) a SH ah Bein 26 Od Sin cated Ul Lip aN Sib tar Ney ACS atin! Bari Nae ° ‘Copy mailed to Maurice H. Greene, Attorney for Plaintiffs, this 8th day of April 1935. EK. M,. Rerpy, Attorney for Defendant, Interstate Commerce Commission. Dan B. SuHrexps, Attorney for Defendant, United States of America. (File endorsement omitted. | 44 | _ In United States District eee . . — Finaings of fact and conclusions of law Filed April 27, 1935 This cause came on regularly for final hearing before underscribed . Sam G. Bratton, Circuit Judge, and J. Foster Symes and Tillman D. Johnson, District Judges, sitting as a statutory three- -judge court, on the 7th day. of January 1935, ‘at Salt Lake City, Utah. Evidence was introduced for and on behalf of the plaintiffs, the defendants offering no evidence; the cause was submitted to the Court and briefs having been filed by the parties, and the opinion of the court having | been delivered by Judge Symes, Judges Bratton and Johnson concur- ring, the Court, pursuant to Equity Rule 7014 of the Stipreme Court of the United States, now makes the following: ‘ en : 4 FINDINGS OF FACT I i d The first s1x + cain of the Bill of Complaint are admitted to : ‘be true by the answers of the defendants, and are found by the court ° 3 to be true. . epi Ses > Mac Dies hae Seasick’ This Yi II On January 4, 1932, the defendant, Oregon Short Line Railroad Company made application ‘to the defendant Tnterstate Commerce Commission for a certificate of convenience and necessity authorizing, said railroad company to abandon 9.053 miles of railroad, known as - the Talbot Branch, extending from Talbot Junction in a southeast; 7 oY GERD he seems . ‘aareiiiais Sakae BEE, snes PORRSRA Og 2% AS Pr PERE Haas TID Ses POR Ae eR ees ae eye . " . ‘ ‘ = a Set le ae ey i ‘ . r @, UNITED STATES ET AL. VS, STATE OF IDAHO, J. D. RIGNEY, ET AL. 27 erly direction to Talbot, Idaho, the whole of said line lying and be- ing within the County of Teton, State of Idahd. Plaintiffs inter- vened in said proceeding before the Interstate Commerée Commission in opposition to said application. Hearings were held before said Commission at which hearings the parties thereto, including the , Plaintiffs and the defendant railroad Cgnpany, appeared and © 45 — submitted evidence. . On the 29th day of November, 1933, the defendant, Interstate Commerce Commission, made and filed its final report on said app!‘cation and issued its Certificate of Con- venience and Necessity as follows: “ Certificate of Public Convenience and Necessity. “At a Session ‘of the Interstate Commerce Commission, Division, 4held at its office in Washington, D. C., on the 29th day of N ovember, A. D. : ie “Finance Docket’ No. 9096 ” Oregon Short Line Railroad Company Abandonment “A hearing and: investig, tion of the matters and things involved in this proceeding bali foes had, and said division having, on the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which report is hereby referred to and made — a part hereof: ae . __ “It is hereby certified, That, subject to the requirement contained in our report aforesaid, the present and future public convenience and necessity permit the abandonment by the Oregon Short Line Railroad Company of its so-called Talbot branch, in Teton County, Idaho, described in the application and report aforesaid. “It is ordered, That this certificate shall take effect and be in force as to abandonment of regular operation from and after 30 days from its date, and as to abandonment 15 months from its date. Tariffs applicable to the branch line in question may be canceled upon notice to this Commission and to the general public by not less than 10 days’ posting and filing in the manner prescribed in section 6 of the Interstate Commerce Act. “Tt is further iad. That when filing schedule canceling tariffs — applicable on said branch line of railroad, the Oregon Short Line Railroad Company shall in such schedules refer to this certificate by title, date, and docket number. ; “And it is further ordered, That the Oregon Short Line Railroad Company shall report. to this Commission as required by valuation order No. 24, effective May 15, 1928. “ By the Commission, division 4. “TsEau] ; Grorce B. McGinty, “ Secretary.” . 5 . oes ite rays Rae gee Reeaa ae eee SiieieseeGe : 2 28 © UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, ~ Upon the date fixed in said Certificate of Convenience and Neces- sity or such future date as may be fixed by order of said Interstate Commerce Commission authorizing abandonment. of said line of railroad the defendant, Oregon Short Line Railroad Company, un- less restrained and enjoined by order of this court, will discontinue service over said line and will tear up the tracks and remove the” rails constitutifg the same and will wholly abandon said line of railroad. III Said line of railroad was constructed by the United States Rail- road Administration, during the period: of Federal control, in the years 1918-20, for. the single purpose of serving the coal mines situated at Talbot, Idaho. The said line of railroad was constructed pursuant to a contract between the Director General of Railroads . and the owners of ‘the coat mines. Cost of construction approxi- | mated $300,000.00, of which sum the coal company agreed to, pay a part and further agreed to furnish certain parts of the necessary right-of-way. Said contract further provided that the railroad company could tear up the tracks on failure of the coal company to supply a minimum specified tonnage for transportation. For a period of four years after construction, by reason of the coal mines being involved in litigation, no rail transportation service was main- tained over the line by the defendant Oregon — Line Railroad Company. IV On June 26, 1924, the plaintiff, Public Utilities Commission of the State of Idaho, on application of the coal company and over the objection of thg defendant Oregon Short Line Railroad ‘Company that said Commission had no jurisdiction over the line in quéstion, held the same ‘to be a spur track, and ordered the defend- ant Oregon Short Line. Railroad Company, to commence 47 operations over the line, upon st coal company furnishing to said defendant a bond in the suin of $27,160.00 to cover the cost of repairs to the track and the construction of a wye for the turning of engines at the mine, said bond to be conditioned upon the coal company delivering to the Oregon Short Line Railroad ‘Company for shipment 29,920 tors of coal a year for a period of five years. Said bond was furnished, and the defendant Oregon Short Line Railroad company complied with said order ofthe Public — Utilities Commission of ‘the State of Idaho. Subsequently the rail- road company procured a judgment for $21,000.00 for construction of the wye and the ownership of the Gem State Coal Mining Com- pany was acquired subject to such judgment. V ‘The. defendant Oregon Short Line Railroad Company has never maintained a train schedule or regular service over the line; has eh, PARE A og ev ot dpcceare om! an ey he sed o “ly i re BR nS Fis] ree oh 38 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, PT AL, facilities $6 this mine, upon the belief, based upon the knowledge that it could get, that there was nothing to justify the railroad, that there was not any traffic in sight, and that nothing indicated that it would justify! a railroad (T. 1-15). In 1912.the Engineering Department of the Oregon Short Line Railroad Company had an investigation made by one of its engineers, Mr. A. M. Nelson. He examined the coal deposits and went over the territory, and submitted a detailed report, under date of February 16, 1912... * In 1912 the coal mining claims of the neighborhood were held by various persons in the locality, according to the representations that ° _ were made to us. While the railroad officials kept in touch with the situation for the purpose of ascertaining accurate information and following the course of developments, there was no activity in develop- ment and no general attention directed to the properties until 1914, when with the World War local interests were again: stimfulated to activity. At this time the property seems to have passed into the _ control of Mr. G, E. Bowerman, a banker of St. Anthony, Idaho. . . This.banker requested that a branch line of railroad be constructed to the coal deposits. .In August 1914 Mr. George B. Pryde made a comprehensive and exhaustive report on the locality, state of develop- ment, and analysis of the coal in all of the openings of the veins in the valley. The characteristic features of all these reports were regarding, 1st, the small amount of development that had been made up to that time, notwithstanding that dikeuny of the veins was prior ‘to, or about 1899; and 2nd, that coal had been extracted and sold to the lgcal: communities ever since their discovery. Mr. Pryde’s *64 ~~ repért of 1914 showed that from the beginning up to that date the total quantity extracted from the four mines was 20,000 tons, during a period of twelve or thirteen years. All agreed that for bituminous coal the samples and the deposits, so far as they were uh- covered, disclosed a fair quality of coal of that character. All agreed that extensive and expensive work and development would be neces- sary to bring the properties to the point of commercial production justifying railroad facilities; and all agreed that the quantity of coal was entirely problematical, no work or development having progressed to the point where the extent of the deposits could be estimated. In July .1917.a Mr. Grant and a Mr. Taft called upon the Chief Engineer and the General Freight Agent of the railroad at Salt Lake City to discuss the probability of securing a branch line of railroad‘from some point on the Victor Branch to the: coal fields on Horseshoe Creek, on the west side of Teton Basin. — ‘In the meeting I attended with these gentlemen, the railroad pro- posed to them that if they would deposit the estimated cost of mak- ing a.survey, the railroad would have a reconnaissance made, and Messrs. Reeves, the General Freight Agent, and Mr. Stradley, the Chief Engineer, stated they would be willing to recommend to the - Railroad Company, their principal, the construction of the branch line, to be — by the railroad but built by and at the cost of | ‘ UNITED STATES ET AL. VS. STATE OF IDAHO, J. D: RIGNEY, ET AL. 39 the parties owning the coal properties, and that the railroad would ‘thereafter refund to the coal company the costs of construction on the basis of fifty cents per ton on coal shipped out over the line, until the cost of the-rails and fittings had been returned. _ After this conference nothing further wds heard of the matter of constructing the railroad line to the coal properties until December — | '1917, when Mr. G. E. Bowerman, of St. Anthony, again took 65 up the matter, representing that he had the necessary financial support to open up the mines and censtruct a line of railroad, provided he could get some encouragement from the railroad in the matter of preliminary work to cover the cost of locating the line, together with estimates as to the probable cost of construction. On December i4, 1917, Mr. R. S. Talbot represented to the offi- cials of the railroad company that. he intended to take over the’ oe Valley coal property; that the property was producing about 30 ok 40 tons per day, and that he and his associates intended to - develop an output of 300 to 500 tons per day. The question of rates was briefly discussed. He was told by the General Freight Agent that the railroad would look with favor upon coal develop- ment in this territory or anywhere else on its line, if it could become | a shipping »roposition. Subsequently Mr. Talbot was notified that, due to the depressed business conditions, the railroad was in no position- to undertake any new construction or development at ‘its owh expense; that if any new construction were made it avould have'to be at the expense of the property to be served, and particu- larly in view of the fact that the property was undeveloped and’ ~ its production was ‘unknown and uncertain. Because of the engi- — neer’s reports concerning this coal property the opinion was reached that there was nothing to justify the construction of a railroad. That is why we all persistently insisted that if any branch line ' was to be built to the mines, it should either be built by the mines as a mine appliance, or at the expense of the owners of the property. - upon contract, and under.a provision by which the railroad would | return the cost and acquire the complete title upon the refund basis paying a percentage.- We always mentioned fifty-cents a ton in this instance, upon the basis ‘of fifty cents. a ton shipped out over the line. oe ; - ; 66 in February 1918 Mr. Talbot was again in conference with officials of the railroad and was informed that the-railroad could not assume any portion of the costs of the proposed branch | to the coal properties, but that if Mr. Talbot concluded to proceed, all the work must be at his expense and without assurance of ‘help from the railroad. Mr. Platt did state, however, that he would be willing to recommend that the railroad gradually acquire title to the © property, after its construction, on the refund basis.. ' _ Mr. Talbot repeatedly stated that on the completion of a,.railroad line to these coal properties the output of the mines would be 500 ~ tons per day, and as soon thereafter as market conditions would per- al ‘ . 40 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, mit the production would be increased to 1,000 tons per day, which would: probably be the steady output for a few years. Estimates of the cost and expenses of the construction of a line to the properties were made from-such-data as was on hand, and sub- mitted to Mr. Platt and discussed with him-and Mr. Reeves and my- self in April 1918. At a conference with Fuel Administrator of seven States, held in Salt Lake City, May 1918, wherein the States of Washington, Idaho, Wyoming, Arizona, California, Oregon, Nevada, and Utah were represented, and which conference was addressed by Mr. Talbot, resolutions were adopted and forwarded to Mr. H. A. Garfield, Fed. eral Fuel Administrator for the United States, as follows: This is the resolution passed by the conference of Fuel Administrators of the seven states named: ' “ Resolved, That this conference earnestly recommends the con- struction of a branch railroad from the Oregon Short Line in eastern Idaho to the Brown Bear and Horseshoe mining district in the Teton Valley, to permit the production and shipment of a first class 67 bituminous coal from these mines to a-population of about 75,000 along the main line of the St. Anthony branch of the ‘Oregon Short Line Railroad. This extension, about twelve miles in length, will permit the shipment of “approximately 500 tons of coal per day oyer a haul of not to exceed sixty miles to, destination, and will greatly relieve the demand for railroad equipment, now required to move this coal a distance of three to four hundred miles from the Wyoming and Utah mines.” Mr. Talbot, having failed to get what he dehined from the local railroad representatives, regarding the construction of a track to these mines, next proceeded to Washington, D. C., where he secured, -on May 15, 1918, the approval of Dr. Garfield, United States Fuel Administrator, of the application for the construction of:a branch line to the Teton Valley Coal Mines, as follows: This is a copy of the document that Mr. Garfield gave him: | Unrrep Srares Fuet ADMINISTRATION, ees BG. a 15, 1918. In your reply refer to 2-A-3. R Mr. R. S. Taxzor, ’ | Spokane, Washington. Dear Sir: Your application for the construction of a track to the Teton Valley coal mines in Idaho: After taking into consideration all the facts contained therein, I hereby grant my approval of vour proposition. All matters pertaining to transportation must be taken up with the. _ Office of the Director General of Railroads. Very truly yours, (Signed) a A. GARFIELD, United States Fuel sc aimseetinet sh Sat: J. CC to Mr. C. RB. Gray, Mr. G.1 N. Snider. UNITED STATES ET AL. VS, STATE OF IDAHO, J. D. RIGNEY, ETAL, 4] 68 Following receipt of the United States Fuel Administrator’s. approval of the application ‘to construct the line, the Oregon Short Line Railroad Company prepared estimates of the cost of the construction of the proposed line. These showed that the estimated cost of the proposed line to the Brown Bear coal mine, based on location survey, including branch line and sidings of 10.26 miles, approximated $277,970.00; tipple trackage for the coal mine, 0.79 miles, approximated $50,800.00. Estimated value of right-of-way to be furnished by the coal company to the Oregon Short Line, $12,000.00. Making a total estimated cost to the Mirfes Company, of approximately $62,800.00. Total of all trackage, including sid- ings, 11.05 miles, and right-of-way, $340,770.00. On July 1, 1918, the following telegram was sent by Regional Director, R. H. Aishton, of Chicago, to Messrs. C. R, Gray and R. S. Lovett, Washington, D. C.-: he ta “Your message today. Have’ just received report from E. E. Calvin conference construction branch line to serve Teton Valley Coal Company, Driggs, Idaho, on Oregon Short Line and mailing complete report with recomméndation to Director Lovett with copy fo you today. J ; | , “I recommend that main branch line ten miles long be constructed at expense of railroad company estimated cost $277,970, and that right-of-way for branch. line, estimated cost $12,000 be furnished by coal company, also that coal company assume cost construction of tipple trackage and other tracks at mine in accordance with General Order No. 15, estimated cost $50,800. This proposifion has approval of coal company and is recommended by President Calvin of Oregon Short Line.” : ; Mr. Gray at that time was Direcwor of Operations for the _ Railroad -Administration, and Mr. R. S. Lovett, who has 69 previously been President of the Union ‘Pacific, Oregon Short . Line and other units of the Union. Pacific System, was Director of Captial Expenditures for the Railroad Administration. On July 2, 1918, Judge Lovett replied to Mr. Aishton as follows: “Construction of branch line of Oregon Short Line Railroad Company to serve Teton Valley Coal Company near Driggs, Idaho, is approved, upon the terms stated in your telegram of July first addressed jointly to Mr. Gray and myself, and’ work may proceed . immediately without awaiting approval on DCE Form Four.” DCE means Division Capital Expenditures. ‘ The Oregon Short Line was advised on J uly 3, 1918, that construc- ° tion of the branch line to serve the Teton Valley coal mines had been - approved on the basis of Mr. Talbot’s paying for right-of-way and tipple trackage and he was to stand-the expense of maintenance of the latter, but the railroad to bear the balance of expense of the » construction of the main line—I mean the Railroad corporation. DCE Form Four, recommended by Regional Director’ Aishton, © July 29, 1918, was approved by the Director of Capital Expenditures, - United States Railroad Administration, August 31, 1918, and there. —_ 42 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, after on September 4, 1918, a contract between the Director General of .Railroads, operating the Oregon Short Line Railroad, and the Idaho Coal Mines Company, a corporation, was entered into, covering the construction of this branch line to serve the coal property. This contract was made applicable to the successor of the Director General, which was the Railroad Corporation. The Mines Company agrees, in this contract, to furnish right-of-way for the entire track, free of cost to the Railroad, and have the * 70 same conveyed to it. The entire line to belong to the Oregon Short Line, and all material used therein, except that portion of the miné tracks paid for by the mine. Provision is also made in the contract for the Director General to use the mine tracks for all the business of the Oregon Short.Line, provided such use will not . interfere with the business of the mine. The track is to be maintained by the Director General, but the Mines Company is to pay the Director - General for maintenance and repairs of that portion of the track belonging to it. _ The contract provides that the Director General, after giving sixty -days’ written notice to the. Coal Company, may terminate the agreement and discontinue the operation of the mine tracks, take up and remove the rails, ties and other materials, and use ‘the same on any part of the Oregon Short Line for any perpen, without let or hindrance, in the event: (a) The Coal. Company ceases for a continuous period of one year in doing of business in an active and. substantial way .over the said mine track ; (b) The Coal Company shall fail to keep and perform each and every obligation,.condition, and stipulation stated in (or resulting under this agreement ; (c) The Director General is ‘required Ly law, ordinance, ‘or police: regulations, or changed conditions, to elevate or depress or other- wise change the tracks of the Railroad at or near the location of the mine tracks so as to make it. impracticable i in the judgment of the Director General to continue the cyerations. If the trackage is removed as authorized -by the contract, the. - Director General shall pay the Mines Company the salvage value of that portion of the trackage removed belonging to the Mine 71 and paid for by it. It is then provided that in the event of termination of the contract, as provided, the Coal Company shall have no recourse or redress of any character against either the Director General or the Oregon Short Line; and finally, it. is pro- ' vided in the contract that the terms thereof shall be binding upon, and inure to the benefit of the successors of the Director General or the Coal Company, and also that upon termination of Federal _ control and resumption of operations by the Oregon Short Line - Railroad, the covenants and conditions in the agreement contained shall inure to its benefit and that of its successors or eicont (T. 16-30). « « UNITED STATES ET AL, V8. STATE OF IDAHO, J. p, RIGNEY, ET AL, 43 Work under the contract was. commenced by the railroad in Sep- tember 1918 and was prosecuted diligently in: an effort to complete _ the trackage by fall, ‘The Mining Company deposited with the Oregon Short Line ‘$4,000 as an advance on that portion of the work to be paid for by it. $47,600.00, was yet to be put up by it in order to complete its part of the work. “Mr. Talbot was repeatedly requested, orally ‘and in writing, to make arrangements to deposit the amounts called for by the contract, so that the work could be resumed... "44 WNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, “Tn view of. emergency now dino in matter of coal supply you are hereby : authorized and directed to complete extension 73 of mine track to a point opposite tipple location where rail- - road could|be joined by tramway from mines, the purpose being to put line in condition as soon as possible for handling coal up to capacity of mine to deliver coal. * Cost of this work is estimated to be $19,530.00 for ‘labor, in addition to $38,570.00. for material on the ground but not yet charged out. Please give notice to Mr. ' Talbot accordingly, as well as giving instructions to General Man- ager of Oregon Short Line.” On the 15th day of January 1920, in wales to settle the differences - between the parties, a supplemental agreement was entered into between the Director General of Railroads and the Idaho Coal Mines Company. It provided that the Coal Company woul pay in ad- vance of the work performed the actual cost of the portion of labor and materials to be paid for by it. The Director General agreed to keep the Coal Company advised of the approximate amount of the balance remaining and. to notify the Coal Company when there re- mained only $7, 000 to apply upon the cost of labor and materials. The supplemental’ agreement provided that the Director General might discontinue the prosecution of the work and terminate the . agreement whenever the amount of money on deposit-with the Direc- tor General was exhausted.. ; Work was then started upon the tipple track of the Mines Com- pany, and late in February, when it became apparent that. the work could not be completed before the termination of Federal control, the railroad decided to complete the trackage that was to belong to the railroad company. When the amount of money on deposit was reduced by progress of the work to the sum of $7,000.00, Mr. Talbot was called upon to make additional deposit on April 10, 1920, in accordance with the terms of the supplemental contract. This demand has never been met, no further deposits or pay- 74 ments have ever been made by Mr. Talbot personally, on the Idaho .Coal Mines account, nor by the Company otherwise. After the completion of the work in April 1920, accurate check -of the work done and the accounts involved therein. was made by - the Railroad, and -it then developed that not only had all of the funds deposited by the Idaho Coal Mines Company been utilized in the construction work it was.to pay for, but the account had n exceeded to the extent of approximately $8,446.62, which amount is. due and owing the Oregon Short Line over and above all moneys deposited by: the Idaho Coal Mines Company and credits properly due it. Demand for payment of the same has been oy made, but has never been complied with. When this branch line reached the coal mine, there was no coal " mine in operation or any coal being produced; and there was not a pound of coal shipped until 1924. UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. 45 The cost of constructing the branch line up to the termination of Federal control was $290,443.80,.a capital charge of the Oregon Short Line Railroad Company. The cost of completing the line by the Railroad Company after that, and in addition to that expense, was $6,809.47. ’ Amount expended by the Railroad in performing work to be paid for by the Mines Company, over and above money deposited ‘by it, was $8,446.62, which latter amount has never been paid. A few. carloads of coal. were shipped during the construction of this branch, but from the time of the completion of the track, in’ April 1920, to the Spring of: 1924, the mine had preduced no -coal for shipment, and not a pound of coal was offered for shipment from April 1920 until April 4, 1924, when Mr. H. F. Samuels, of Idaho, as President of the Teton Coal Company, requested the Gen- eral Manager of the Oregon Short Line Railroad Company 75 to put the line in céndition for operation and set coal cars at the Company’s mine for loading, advising at the same time that his Company was starting. construction of a 4,000-foot tunnel, which he estimated would be completed within a year. Following this request, the Railroad Company -caused the property to be in- spected by competent mine ‘operators, and refused to spend. more money on this branch because, up to that time, notwithstanding the very large expense on the part of the Railroad to build this track, . no coal mine had been developed as a successful shipping property, and no coal had been shipped to justify the expenditures that had theretofore been made, and the mining experts reported, at the con- clusion of an investigation, that it was very improbable that the mine could ever be developed as. a paying producer of coal to ship hy rail, and that there was little probability that the Coal Company would be able to develop the mine to a paying proposition. On April 8, 1924, a suit was instituted by the Teton Coal Com- pany against the Oregon Short Line Railroad Company, before the Public Utilities Commission of Idaho, to require the railroad Com- pany to repair, rehabilitate, and operate the track from Tetonia Junction to the Brown Bear Mine, in Teton County, and to furnish sufficient cars to: remove the coal from the mines and to publish and file tariffs to cover intrastate shipments of coal from the mines. required the Coal Company to furnish a bond in the sum of $27,- 160.00 to. the effect that it would ship an everage of 29,920 tons of | coal a year for a period of five years, upon which it would be allowed a credit of twenty cents per ton. ; 76 The estimated cost of constructing a wye at the end of the | *branch, which the Commission found necessary and /ordered ' Constructed, was $27,160.00 and as this was equivalent to twenty 37542354 oa : 46 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, BT AL. cents per ton on 29,920 tons fora period of five years (the Coal Company’s representatives had testified upon the hearing that they could ship in excess of that amount, if they -had transportation facilities), the order was made as above described, arrived atin the ‘ manner just detailed. This order of the Commission will be found on pages 264 to 290 of the.11th Annual Report of the Idaho Public Utilities Commission. The Railroad Company promptly obeyed the order and rehabili- _ tated the track and constructed the wye, with the result that at the end of the five-year period only 21,393 tons of coal had been . shipped altogether, -as against a guarantee of 29,920 tons per year, or a total guarantee of 119,680 tons, thus leaving a balance due to the Railroad Company, under the obligation of the bond, of $19,- 657.40, no part of which ‘has ever been paid, although demand for the payment of this sum was made and refused (T. 31-40). On July 14, 1928, the. Railroad Company instituted a suit for the recovery of the amount due on the bond and the order of the Commission. One appeal to the Circuit Court of Appaals was taken wil finally judgment was rendered in favor of the plaintiff, the Railroad Com- pany, and against the defendants, the Teton Coal Company, H. F. Sdmuels, John W. Egleson, Receiver of the Coal Company, and certain sureties on the bond, for $21,000.00, no part of which has ever been paid, and which ie a lien upon the property: of the Teton Coal Company, subject tqbond issues, judgments, and laborers’ liens aggregating close $500,000.00. 77 In this connectf$n the Railroad Company, as a result of some negotiations that did not produce any money, dismissed the action as against the sureties, and never got anything from the sureties on this bond. They were all individual sureties. - & Substantially no coal mining operations have been carried on by . . the Teton Coal’ Company since the summer of 1928. Most of the time-;since then the Teton Coal Company has been in the hands of the receiver. In addition to the expenses and lawsuits mentioned an action was commenced by the Teton Coal Company against the Oregon Short-Line Railroad Company to reduce freight rates on coal ship-’ ments from Talbot, Idaho, as:a result of which an order was entered - finding the existing rates unreasonably excessive and establishing a new schedule of rates. . In May 1925, in a.suit by the Oregon Short Line Railroad Com- pany versus the Teton Coal Company and others, the Railroad Com- pany was required to institute a proceedings for an injunction, and to secure a temporary ‘restraining order to prevent the defend- - ants from tunneling under the land and tracks owned by the Rail- road at a point ppposite the tipple. At the is tunneling was done the mines where shut dewn and no extraction of coal or ship- -ments had taken place for some time. This case was comp UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. 47 This branch line was ordered in by the United States Railroad Administration, upon the recommendation of the Unitel@ States Fuel Administrator, over the protest of the Railroad Company, and under representations that never came true, and that the develop- ment and shipment of coal over the line constructed has never justified its constriction nor does it justify its present existence and | the expenditure of money. | . 78 - Notwithstanding the large promises that have been made from time to time by various people connected: with this prop- erty, the mine did not ship a pound of coal from the time of the completion of the track in April 1920 until April 1924. Since that — time the total shipments, instead of being anything like predicted, promised, ‘guaranteed, or ordered by the State Commission, under . bond, to average at least 29,920 tons per year, it has been only a total of 38,329 tons, all told, up to April 1, 1932, or an average of 4,791 tons per year. The total revenue derived from the time the ' line was built,.April 1920, to date has been but $9,508.29.. The ac- cumulated deficit over revenue is $59,359.99. We are suffering a loss évery year of something over $4,000.00. 'We knew a great deal more about the conditions and the lack of justification for this -construc- tion than did the Railroad Administration that ordered it put in. | The president of the Union Pacific Coal Company predicted 79 ~~ that the coal mines would not be a success; that coal could not : be mined therefrom and produced profitably; and stated that this branch line was not justified. The position previously asserted ‘and now maintained by the railroad was and now is an established fact; that there never was any justification for this branch track; ._ established and demonstrated facts: , . | Under the practice of the State Board of Equalization spur tracks ‘are not separately identified or named and assessed. The State Board _ of Equalization in the. State of Idaho ‘is ‘made up ex officio of the: Governor, the attorney general, the treasurer, the secretary of state, and the State auditor, and it is a board that assesses for taxation purposes all public utilities in the State. The track leading from the . junction to the mine at Talbot is classified and assessed by the State Board of Equalization as a branch line, the same as the Twin Falls, . Mackey, and other branch lines. ¢ 3 After Federal ‘control ceased, the Oregon .-Short Line made a -Claim against the Railroad Administration, protesting against being charged with the expense of construction of this branch line. That claim was in writing dated May 12, 1919, addressed to the Director General of Railroads. It specified five items in all totaling $1,549,- . 575.00... * we The first item in-that claim is the one based upon this track, . ordering this track in. It says: “The Oregon Short Line Railroad - Company hereby gives notice, under and pursuant to the provisions of section 8 of the contract dated February 14, 1919, between the and there is no justification for the continuation of it in the face of 48 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, Director General of Railroads and the Union Pacific Railroad Com- pany, Oregon Short Line Railroad Compdny, and others, covering the Federal control of the transportation properties of the Union - Pacific System, that said company claims that losses have accrued 5 or will accrue to it by reason: of additions, betterments, 80 ~° track extensions, and motive power made and provided by order of the Director General.of Railroads prior to the execu- tion of the contraci aforesaid on‘or in connection with the property of said company taken under Federal control, in respect of the items hereinafter set forth, and to the full amounts charged or to be =. to said company as the capital cost of said items, viz: “The cost amounts hereinafter stated are, estimated costs shown by the D. C. E. forms or work orders.) ‘* —e “a. _“Form and serial no. 4: 15; approved by D. (.-E., September 3, 1918; amount, $289,970.” , _ Construction of 9.05.miles of branch line railroad and 2 miles of sidetrack from Mile Post 31:54 on the Teton Valley Branch of- - Oregon Short Line Railroad for handling coal output of the Teton Coa! Céinpitny.° This construction was ordered by the Railroad Ad- ministration over the protest of the company. \The coal mine in- tended to be served by this spur was undeveloped and its estimated capacity and production, taking into consideration local mining and market conditions, were not sufficient to warrant the large ex- _ penditure necessary for the construction of this spur. It is the be- lief of the company that the construction was ordered upon the recommendation of the Federal Fuel Administrator, based solely upon then existing emergency conditions as to the coal supply of the @untry, and without. regard to the want of justification for ~ such, ction from the railroad’s standpoint. These claims of the Oregon Short Line were lumped with all the claims of the Union ” Pacific System, and presented to the Railroad Administration, total- ling $28,525,896.12. Those were all the claims for the Short Line, -the Union Pacific, the Los Angeles, and Salt Lake. I don’t know whether or not the ©. W. R. & N. was included. After long negotiation the Government said: “ We will give you eight million dollars,” - There was no identification of what the eight million dollars was for; no itemized account, no anything; but _ after some consideration the railroad accepted it. . 7 81 ' Cross-examination They gave us~$8,000,000.00 for a claim of $23,525,896.12 and we accepted it. : ; I have no way of kilowing that the $8,000,000.00 allowed by the | Railroad Administration was in fu!l of.our claim of $289,970.00 for the construction of the Talbot branch. We received no itemized ‘ e ‘ | ' UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. 49 ‘statement from the Railroad Administration as to how much was allowed for this Talbot branch. If any evidence was given at the hearing before the Public Utili- ties Commission of Idaho that the Railroad Administration allowed ° and paid all cf the amount of the claim for this road, except $32,- 333.00, it was a mistake. I have no way of knowing what part of the $8,000,000.00 allowed by the Railroad- Administration was al- lowed on our claim of $289,970.00 for the construction of the Talbot branch. There is a bare possibility of an allowance of the entire $289,970.00, but it is so remote that it is not susceptible of any credence. A copy of the contract between the Director General of Railroads and the Idaho Coal Mines Company was thereupon offered in evidence. . Mr. Biacx. We want to make the objection that it is incompe- tent, irrelevant, and immaterial for any purpose in this case. ”~ Examiner Suuiivan. That objection will-be overruled. It will be accepted for what it is worth. That contract will be accepted as exhibit no. 1. ; (The contract was received in evidence and marked “Applicant’s Exhibit No. 1, Witness Smith ”, for identific: tion. It is forwarded . herewith). (T. 41-60). Direct examination J. H. Bean, General Clerk, Freight Department, Oregon Short Line Railroad Co. The witness referred to Oregon Short Line Tariff Supplement No. 5 to I. C. C. No. 2075, issued on January 9, 1919, to becom 4 tive January 16, 1919. Supplement 7 to O. S. L. Tariff I. C. "C. 207 ‘ issued on January 9, 1919, to become effective January 16, 1919, a lishing through rates on coal from Talbot to destinations i in Idaho, *Montana, Oregon, and Washington. Talbot is the only station on ‘ this branch shown by the tariff. We never filed any general : 83° class and commodity tariff until 1924, effective November 25, “ O. S. L. Tariff 4307, I. C. C. 2512. That carried a general line of class and commodity rates to and from the main line junction. This also includes Dygert: Tariffs are not filed covering spur prop- 82 Cross examination _ _ These rates on coal were published from Talbot. There would be ‘ no difference in the tariffs in the rates on coal from Tetonia Junction and from Talbot, as the Talbot rate would apply under the inter- . mediate application from Tetonia Junction. This tariff I. C. C. 2512. had the effect of establishing through rates by the use of a propor- - tional rate to and from Talbot, from and to Talbot Junction... After November 25, 1924, there was a difference in the rates from Tetonia Junction and from Talbot, dependent on what the commodity was. 5Q ‘UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, We had graded class.rates and an abritrary proportional. The tariff was built in. two sections: One section for the local rate on. the. branch, from Talbot Junction to Talbot, the proportional section to be added to the rates to and from Talbot Junction. :’ oe A proportional rate is an arbitrary figure to be added to a base rate to and from a givén base and‘point, and cannot be used locally. — _ The rate to be added to Talbot Junction is of lower volume. than the _ local rate would be for handling the same commodity from Talbot Junction to. Falbot. These rates are now in effect and have been since 1924. ef ne ae Rare Coal is rated class D and on cogk from other producing districts to Talbot 314-cents ‘a hundred clone is added to the rate in effect: to Talbot Junction in the tariff for the local movement. That _ tariff is only on file’as an Idaho intrastate tariff. The new crates covering commodities other than coal were published- November 25, ‘ 4924. The junction is about a mile or a mile and a half from | Tetonia. We have a rate on coal from Talbot to Tetonia. “84 There is not a specific rate to‘the junction The Tetonia.rate would apply at Tetonia Junction under the intermediate ap- . plication. Hig at 2 . Redirect examination I have been testifying as to the rates from Talbot to the branch line junction point; also rates from Talbot to other destinations beyond the junction. There is ‘no ‘rate. published from Talbot, a point at the mine, to the junction where the branch attaches on to the ‘Victor.branch. The rate to the junction if a shipment moved through, would be the rate to the point beyond, under the inter- mediate application, which is Tetonia, the first point beyond. _ Direct examination E. Sracey, Locating Engineer, Union Pacific System Lines. The witness’stated that as Locating Engineer for the Union Pa- cific System he located the line of railroad running from Tetonia to Talbot in 1918... A map previously marked “Applicant’s Exhibit No, 2, Witness. Stacey ”, for identification, was thereupon received in evidence. The Teton Valley is enclosed on the east side by the high mountains - of the Teton range, and by lower hills on the south and west sides. Due to this topography all the streams carrying any material amount of water for irrigation are on the east side of the valley, where are - located the towns of Felt, Tetonia, Driggs, and Victor. These con- stitute the main settlements of the valley, and are all served by the Teton Valley branch of the Oregon Short Line Railroad. The streams over on the west side of the valley are all small, and are generally used to irrigate individual’ ranches located at the . mouths of the canyons. | ee TARY ERM Nate ity Seaaire m pele nce WAIL 10-501 cw eoprecumnaerattecermmanen UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. 51 85 Horseshoe Creek, ‘up whose canyon the Talbot branch goes, ‘ is the main stream on the west side, and irrigate’ a ranch #f approximately three hundred acres. -This ranch is about seven miles from Tetonia. -These west side irrigated ranches are largely devoted to hay and stock-raising, and were settled prior to any railroad construction in the valley. There are around one’ thousand acres of this irrigated land which is nearer to the Talbot branch than to the Teton Valley branch, but not over ten miles from the trackage, | if the Talbot branch was abandoned. Probably ninety percent of these west side bench lands are w ithout water, and where cultivated are devoted to dry-lang grain; the best ‘farms being along the foothills, where the soil is freer from gravel, - and the snowfall deeper. ‘The ‘lower portion of the bench, next to. the river, contains the most gravel, and where uncultivated is good ‘stock range. There is estimated to be five thousand acres of the dry farm land nearef to the Talbot branch than to the Teton Valley branch, but not over a ten mile haul to the latter. Some of these five thousand acres are of gravelly sqil,.and evidently spoiled a _ good stock range to make a poor dry farm. The agricultural industry in this territory has remained. practi- cally stationary. The entire west side of the valiy, including, that portion traversed by this Talbot branch, is withigt ten miles or less of the present Teton Valley, and has a railroad clgse enough to serve it for any agricultural purpose. About midway along this branch railroad ffom the junction to Talbot is located a side track about 1 480 feet long, which has been named Dygert. That track is adapted to loading; that is what it was put there for. Referting to Exhibit No. 2,:the legend in the ‘lower right-hand corner of the map- designates the different types of roads 86 shown. It is noted a gravel road extends from the Idaho- Wyoming line, near Victor, northward through the main set- Alements of the valley. This turns westward toward Sugar City, at the upper left-hand corner, where it joins with the Yellowstone highway, which is the main traveled route up and down the =r Snake River valley, tapping all the principal cities in it. Another gravel road extends up the south fork of the Snake River, in the lower left-hand corner, to a point about opposite Vic- tor. Here a graded earth road goes over the mountain and connects with the graveled road at Victor. ‘ There are numerous earth roads, graded in places, extending be- ‘tween the east and west sides of the valley, the principal ones being ~shown by a short dotted line on this map. These roads are in prac- tically the same condition as in 1918, and are the ones over which coal has been hauled in the past. - They offer'a fair means of trans- portation during the greater part of the year, but are quite bad during the melting period, until the ground dries out in-the spring. This covers a period of about two months. Sv SAPRSEIROIS PAUL RARE ER A EIS REMMI om Ye 52 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL _ It is eleven miles,by wagon road from the coal tipple to Driggs; eleyen miles from the coal tipple northward to junction with the gravel road leading to Sugar City, and ten miles from the tipple to Tetonia. The shortest distance\from the tipple to the Teton Valley branch tracks is about nine miles. _ While these roads would not stand up under heavy or continuous traffic, they have remained in their present condition for a consider- able period of years. The branch line of railroad: leaves the Teton Valley branch about a mile and a half south of Tetonia Station and takes a southwesterly course for about nine miles. At the end is located a coal 8% tipple. Fhe grade is descending outbound till the Teton River is. crossed at Mile post 2.5.: The maximum grade down-— hill is 1.2 percent from the junction to the Teton River. The Teton River is crossed, by a 13-span pile bridge 195 feet long. The grade then becomes ascending, outbound. Open couritry is traversed to mile post 6, where the canyon of Horseshoe Creek is entered and followed to the énd of the track. . This canyon portion is quite steep and crooked, having a maximum curve of 12.26’ and a 2.2 percent grade. The line is constructed according to standard branch line construction. At Talbot. sufficient secondary trackage was con- structed to handle the anticipated output from the mines (T. 60-75), Cross-examination The rails on the Talbot line are 75 pounds to the yard, which is standard branch construction. Our heavy main-line engines would not operate over this line nor over the Victor branch. The Talbot branch has practically the same type of construction as the line from _ St. Anthony to Victor. ; : - The cross-section of the valley is a good deal like a saucer, with the Teton River flowing through the middle. The-grade from the mine down to the river and the grade from the river out to Talbot Junction are‘ both maximum and ruling grades. A short ‘pitch of ‘a very steep grade would be a maximum but not a ruling grade. The locomotive might be able to make a run and pull the grade; then it doesn’t become a ruling grade. A ruling grade depends.upon the engine capacity. ; . There are more than four tracks constructed at Talbot and in 1924" a wyé’ was constructed’ so a locomotive could be turned around. The construction there was done with the purpose of handling the, aniount that wM®anticipated ; arfywhere from 500 to 1,000 tons a day. The siding-at’ Dygert was placed there for the purpose of loading. farm products. If the branch line were abandoned farm 88 products could not be loaded closer than Tetonia, which 1s about ten miles away. That would be the maximum; most of the farmers live within three or four miles of Tetonia. If this branch were removed’ the nearest railroad track to ship produce or coal would either be Tetonia or Driggs. I have been over . « . { . UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL, §3. the road from Talbot down to. Drigg@in the winter time; once & bob - sled was necessary—another time it wasn’t. The wagon road from Talbot to Driggs is not a graveled road. For the first four or‘five miles leading west from Driggs down to the Teton River it is rather marshy and some gravel and large logs have been hauled in. From the Teton River up to the coal mine at Talbot it is just a dirt road. The wagon road leading from the coal mines to Tetenia is a dirt road. During the latter part of the spring or.summer until the snow comes . in the fall these rof@ls are dry and a fair means of trarisportation. The grades on these roads from the mine are down grade to the Teton River, so the grade is not an impediment against -hauling, freight gut. Trains moving up to Talbot would usually haul empty cars, SO that the grade would be no impediment. Redirect examination This branch line is sufficiently well constructed to permit of the use of whatever equipment may be necessary to handle the traffic that originstes or is offered on the branch. Direct examination J. T. Lyon, Station Agent, Oregon Short Line Railroad Company, Tetonia, Idaho. _ The witness has beenStation Agent at Tetonia since April 26, 1920. He stated that farm crops have been mostly delivered to Te- tonia. Some shipments of wheat and potatoes have been made 89 from Dygert where an itinerant trucker goes out into the terri- - tory and buys up grain and pools it to, make a carload. or possibly two or three carloads at a time. ‘The individual’ farmer does not raise enough to make a carload, so he naturally delivers it to Tetonia- because there is no established market place at Dygert. - There is a saving for the shipper by hauling it to. Tetonia as there is an arbitrary on grain of 314 cents at Dygert over Talbot Junction, Grain crops have been materially reduced in the last four or five _ years. Potato raising on that side of the valley has rather recently’ come into being. There has been some abandonment of dry farms on the west side. . * Cross examination Up until the last two or three years the Teton Valley has been a prosperous valley. Wheat is raised on the west side of the Teton River, but it is not a good wheat country. ;When the price of wheat is low very little is raised (T. 75-89). Direct examination Morris H. Brown, Jr., Division Engineer, Oregon Short Line Rail- road Company. -e SG 2 54 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. ’ The withess offered in evidence Exhibit No. 6, showing estimated cost The witness stated that he was: Division Engineer of the Oregon ° Short Line, having jurisdiction of the Utah Division which includes the Talbot Branch. . The witness thereupon offered in evidence Exhibit No, 3 entitled -“ Cost of Work Performed During September, October, and Novem- ber, 1924, at Various Locations, Mile Post 0 to Mile Post 9, in con- nection with,,Rehabilitation of Talbot Branch ”, which was received in evidence over objection. The witness offered in. evidence Exhibit ' No.4 which purports to show the cost .of work performed in connec- tion with Construction of Wye Track at-end of Talbot’s Branch 90 during 1924, 1925. The exhibit was received in evidence over objection. The witness offered in evidence Exhibit No. 5, a statement showing Estimated Cost of Maintaining’ the Talbot Branch during the year 1932. The exhibit was received in evidence. -~ of maintaining the Talbot Branch during the year 1983, and Exhibit No. 7, showing the estimated cost of maintaining the Talbot Branch during the year 1934. -Both exhibits were received in evidence. The Roadmaster having jurisdiction of this line and myself made an inspection of the track, paying attention to the condition of ties, the line surfave and gauge, and prepared by estimates as.a result of | that investigation and inspection. The estimates are submitted on anticipated requirements.’ An estimate:has been made of the cost of: repairing this nine-mile branch line and of the net salvage value. | The salvage value of material which can be salvaged is $42,593.00. The estimted cost of recovering this material is $18,754.00, leaving a net credit due to salvage of $23,839.00. or = . * ° Cross-examination In operating trains from the junction to the mine a full regular | train crew is used. It has been the customary practice for the local crew on the Victor branch to handle the work up to the Talbot mine. This requires an: ——~, fireman, conductor, and two brakemen..* They are paid 100 miles.extra time for going this nine and a fraction * miles. That is because of their agreement; the Talbot Branch was ‘not in their assignment. The whole crew makes the trip and each’ one of them is allowed 100 miles extra, but only when they make the trip. That is the result of a labor agreement between the railroads and the organization because the Talbot Branch was not a part of their regular assignment. — : 91 If the Superintendent assigned these men to this run and inéluded the Talbot Branch there would be no extra charge, but if it was included in their assignment.it may irtcrease their daily wage, regardless of whether they operate or not. ae ; I do not know from my own knowledge anything about the cost of what was done on the Talbot Branch in 1924 and 1925, except what the record reveals. ™, | , salsa: sone nese mcenegeren een eerenccenmmealll ‘ UNITED STATES BT AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. . 55 *The record does not indicate that any work was done on this branch from 1920 until 19247 ~The 16-span bridge over Horseshoe Creek was occasioned by the building of the wye at Talbot in 1924. From the time the line was rehabilitated in 1925 until 1932 there has been nothing unusual in expenditures to keep up the line. -In 1932 the line required 800 cross ties at a cost of $1.31 each, making a total of $1,048.00. Personal inspection was made of the . branch with a view of being as economical as possible, utjlizing ’ second-hand crossties and what. additional ties would be necessa to renew broken and completely rotten ties. To a mile of trac 2,560 crossties are necessary. -This was very much under an ordi- nary replacement. An ordinary replacement of ties on a line as old as this branch would. require an average of abotit 200 ties per mile, The cost of $1.31 per tie is purely a material charge of the store de- partment and does not include the cost of laying the ties. The cost of renewing the ties is shown on the exhibit as $403.00. Labor costs ‘have been reduced 10 percent in the last year. Some crossties may have been along the railroad and these are termed “in storage,” as - they were not installed. ° In 1933, 3,000 tieplates were -required:. This prevents mechanical wear to the expense of creosoted, oil-treated ties. It stops deprecia- tion of the material, and is also labor saving after they are applied. a oe . 92 ° There is“an item of $300 for work trains’ plowing snow. A Jordan spreader was used for a snow plow. It took a portion of one day. The Jordan spreader is operated by air but-a Jocomo- tive is required to Shove it. The fact that we went up there once last winter with the Jordan spreader for a portion of a day does not necessarily indicate thet is aH a Jordan spreader would be requited to clear away the snow in the winter time. That could not be con- sidered as an average (T. 89-108). Direct examinatior R. Wuirrrecut, Department Auditor, Oregon Short Line Rail- I have prepared a number of exhibits on behalf of the application of the Oregon Short Line Railroad Company for permission to abandon the Talbot line of railroad. The basic figures shown by these exhibits were all drawn from accounting records which are kept and maintained in a¢cordance with requirements of the Inter- state Commerce Commission. The exhibits themselves cover and _ supplement information previously furnished- in the railroad com-| pany’s return to the Commission’s questionnaire that was issued in connection with this docket. Thése exhibits were prepared under my supervision and direction from records kept in the regular course | of business and I vouch for them as being correct. : - ~ _— 56 UNITED STATES ET AL. VS. STATE OF IDAHO, J. D.-RIGNEY, ET AL, Exhibit No. 8, entitled’ “Investment in Road and Equipment, Leased Lines, Material and Supplies, Gross Earnings, Expenses and Taxes, Net Railway Operating Income, Etc., of the Oregon Short) Line Railroad Company for the calendar year ended December 31st, 1927 .to 193], inclusive, Total’and Average for Five Year Period, ° 1927 to 1981”, was received in evidence over objection. 93 Exhibit No. 8 consists of one sheet, which shows for a period of five years, ending December 31, 1931, the book investment- of the Oregon Short Line in property held for ‘and used in the serv- ice of transportation and on which it is entitled to earn a fair return. The total of such property held for or used in the service of trans- portatiori is shown opposite Item 6 for each year, in the aggregate for thé*five-year period, and the average per year during this period. The exhibit also shows the income debits ‘and credits, respectively, which go to make up the so-called “ net railway operating income ” as defined in Section 15-A of the Act to Regulate Commerce. The net of this balance is shown opposite Item 9, the percent that it bears to the investment opposite Item 10, the amount which should have accrued on the property held for and used in transportation - service opposite Item 11,.the defigit and percent of deficit opposite Items 13 and 14, respectively. As in the case of the investment item, each of these succeeding items is shown separately, by years, in the aggregate for the five-year period, and the average per year during - such period. : + Cross-examination The report to the Commission indicates that the Oregon Short Line did not pay a dividend for 1931. Practically the entire capital ‘stock of the Oregon Short Line is owned by the Union Pacific Rail- road Company. The Oregon Short Line is operated as a separate property but, is known commonly as a part of the Union Pacific System. The Oregon Short Line has a separate General Manager, a separate staff, and operating officials below the rank of General Manager. ale a ae The Oregon Short Line in 1930 paid a dividend of Four Million Dollars. That is 4 percent on its common capital stock. 94 The Oregon Short Line is that portion of the main line west of Granger, to Huntington, Oregon, with the ‘branch lines _ which diverge from this main line, and another main line extending + ’ €rom Salt Lake City or Sandy, Utah, north to Butte, Montana, and all diverging branches. ~ ane It was the recollection of the witness that the Oregon Short Line paid a dividend of $4,000,000.00 for each of the years 1927, 1928, and 1929. . : ao Direct examination The witness thereupon offered in evidence Exhibit No. 9, con- — - sisting of one sheet, entitled “ Operating Revenues, Operating Ex- . ~~ penses, Railway Tax Accruals, Uncollectible (Railway. Revenues, cs UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. §7 | Equipment Rents—Net, Joint Facility Rents—Net,. Net Railway Operating Income, and Accumulated Deficit of the Talbot Branch, Talbot Junction to Talbot; Idaho, from the date-operations were commenced, July 15, 1924, to December 31, 1931, inclusive.” ; This exhibit. shows separately for the period July. 15th to Decem- ‘,ber 31st, 1924, and by years thereafter:to December 31; 1931, the . earnings and expenses of the Talbot Branch, including taxes and. rental items, that go to make up the net railway operating income as explained in connection with the pregeding exhibit. In setting up the revenues, the branch was allowed the total of : revenues loca] thereto, For shipments moving on to and off of the. branch it was allowed its pro rata mileage proportion of the earn- ings based on individual movements. Operating expenses were like- wise allocated on an actual basis where possible, as-in’ the case of » yepairs to way and structures, the largest individual item of expense. Other items which were not specifically allocatable were pro- 95 rated on relative road rKileage, locomotive mileage, car miles or train miles, as was appropriate. Total taxes represent the specific. accruals on the branch, while- equipment rents represent amounts for use of equipment while engaged in service on the branch line. ' The exhibit shows opposite Item 16, net railway operating income, a deficit for the Talbot Branch, ranging from between $3,000 and "$4,000, to more than $15,000 per year, and an accumulated deficit opposite Item 17 in the last right-hand column of approximate] ' $58,000 ‘for the total period July 15, 1924, to December 31, 3h, inclusive. | Seal Fr Cross-examination The operating deficit as. shown on Exhibit 9 means that this deficit accrued by operation .of the Talbot branch. I mean that after taking first the revenues which could be allocated to the branch, we had other revenues which accrued, both on the branch and off the branch, and it was necfssary to pro-rate this revenue to get a portion of it to the branch, to offset, the expenses which accrued on the branch. The exhibit shows the deficit in 1924 of the Talbot Branch, determined as the Commission has directed that it shall be . done, was a deficit of $10,180.00. That was the year that the wye was built. The next year shows the net operating deficit for the Talbot Branch to be $3,818.00. = — - . _ We apportion the figures in the matter of revenue and expenses y taking a proportion of the revenue that nine miles represents to_ the total distance that the shipment moved, and assign that portion , of the revenue to the Talbot Branch. The Talbot Branch derives: . no benefit of revenue from shipments originating at Victor 9 or Fetonia. The Talbot Branch is aot charged with any . expenses ef shipments -originating at Victor, Driggs or - Tetonia. : ; a 58 UNITED STATES ET.AL. VS. STATE OF IDAHO, J. D. RIGNEY, fT aL. © \ ; ‘ ) It is not customary to-assigh deficits or net revenue to any por- tion of the line. This has been done in response to the Commis- - gion’s instructions, to give the’Commission the data from which they could form some conclusions with to the profitableness or unprofitableness of the: portion, of the line that is sought to be abandoned. As a regular accounting matter, the revenues and ex- _ ‘penses are not assigned to any portion of the line as a whole. ‘If the amount of freight originating on the Talbot Branch at Talbot was doubled, it would reduce the deficit of $3,818.82 a certain ‘amount. The freight revenue for that year, that we have given the branch line, is $715.98. The deficit, if you double that amount, on the same amount ‘of tonnage, it would reduce the deficit the same arpount, as a mattér of calculation arithmetic. If you gave the ch $715.00 more .on account of additional tonnage, the deficit would be reduced some lesser amoynt than $715.00, Just what it is don’t: know. ‘ ~’“Q, Does the Orezon Short Line have any feeder system, spurs __ like this, that are really self-supporting, on that system‘ ' 6A. T am afraid right now I can’t answer that question. We have made some studies of other lines that we have found weré not selftsupporting.” f If the line from Tetonia Junction to Talbot were abandoned it is estimated that there would be an actual saving of something like $5,000 a year, that is, assuming that it does not produce any tonnage. “Q. If it preduced five hundred tons a day, or one hun tons - a day, aad you got to distribute that over your lines to Boise 97. - and Weiser and other places in Idaho, then you would make a profit oy it, wouldn’t yout ; - _2%A. Well, we have never shipped that much, but I think one _ hundred’tons a day would probably yield a profit.” Direct examination The witness thereupon offered in evidence Exhibit No. 10, being a “ Statement of operating revenues, operating expenses, railway tax accruals, uncollectible railway revenues, equipment rents—net, joint facility rents—net, and net railway operating income of the Talbot Branch, Talbot Junction to Talbot, Idaho, for the period January 1st to March lst, inclusive, 1932, and accumulated deficit since July 15th, 1924” The exhibit was received in evidence without ‘objection (‘T. 108-128). Cross-examination \ Some traffic moved, as one item shows freight revenue of $69.25. Out of all the cars of coal originating on this brarich from January 1st up to March 31st, the revenue apportioned to the Talbot Branch is $69.25. It is undoubtedly an apportionment. Line 14 shows an item of $63.80, equipment rents. We take the car-days and locomo- UNITED STATES ET AL. VS. STATR OF IDAHO, J. D. -RIGNEY, ET AL. 59 tive-lays while they were on: the line, and assess » charge on that ct Direct examination . The witness thereupon offered in 0 a a ar it, con- . sisting of one sheet, which shows separately by years and by com- modities the traffic originating-on or destined to points on the Talbot Branch during the calendar years 1924 to 1931, inclusive, as reflected _ by existing accounting records. ‘ It will be noted from the exhibit that the outbound shipments reached their peak during 1927, when a total of 282 cars; aggregat- ing 13,670 tons, were forwarded, since which time there has 98 _been an annual decrease to 1931, in which year three ¢ars, ag- gregating 130 tons, were forwarded. In-bound shipments reached their peak during 1926, when a total of 12 cars, i 411 tons, were received on the branch, since which time there have been varied decreases to the extent that there were no in-bound ship- ménts during the year 1931. The éxhibit was received in evidence. The witness thereupon offered in evidence Exhibit No. 12, which is a “ Statement of Revenue Freight, showing cars and tons of rail- road freight and tons of less-than-carload freight, by commodities, originating on and destined to points on the Talbot Branch, seg- regated as to forwarded from and received on the. branch, for the . period January Ist; 1932, to March 31st, 1932, inclusive.” The ex- hibit was received in evidence. This exhibit merely brings the total ‘shipments down to March 31, 1932, inclusive, or as far as the accounts of the Oregon Short Line have been closed to date. Cross-examination These are the eleven cars from which revenues given on Exhibit 10 are set forth as $69.25, .or the amount of revenue apportioned to the Talbot Branch was $69.25. The total amount collected for the eleven cars for the entire Oregon Short Line movement from Talbot to the ee ie point of destination was $511.59. The witness.thereupon offered in evidence Exhibit No. 13, entitled.“ Statement showing carload ship- ments of coal originating at Talbot, Idaho, showing tons, and O. S. L. _ Railroad Company revenue by years and destination points, for the period July 15, 1924, to December 31, 1931, inclusive.” -The exhibit * Was received in evidence. The revenue includes the branch line yg nei | ¢ witness thereupon offered in evidence Exhibit No. 14, which is entitled “ Statement Showing Carload Shipments of 99 Coal originating at Talbot, Idaho, showing tons and O. S. L. R. R. Company revenue by destination points, for the period January Ist, 1932, to March 31, 1932, inclusive.” The exhibit was received in evidence. This exhibit merely brings the data shown on Exhibit No. 13 down to the closing of accounts March 31, 1932. 60 UNITED SLATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL, This is an exhibit of two sheets which shows by years from July 15, 1924, to December 31, 1931, shipments of coal originating on the Talbot Branch, segregated by destination points, showing for each destination and each year the tons of coal shipped: and the O. S. L. R. R. Co: revenue accruing thereon. The revenue shown on this ex- hibit is that accruing to the O. S. L. R. R. Co. out’ of the entire haul from origin to destination or junction point. Total revenue on coal traffic for each year is shown on the last line on Sheet 2 of the exhibit, and ranges from a high of $23,863.78 in 1927 to a low of $196.34 in 1931. ; Cross-examination The farthest point that any coal was shipped during the first three months of 1932 was Firth. 2 Direct examination The witness thereupon offered in evidence Exhibit No. 15, a “ State- -ment of Carload shipments (other than coal), fror) and to. points’ on the Talbot Branch, showing date of shipment, point of origin and destination, consignor or consignee, commodity, tons and Ore- 100 gon Short: Line Railroad Company revenue, segregated by years, as to, forwarded from and received on the branch, for the period July 15, 1924, to December 31, 1931, inclusive.” The ex- hibit was received in evidence. | This is an exhibit of five sheets and shows by years, 1924 to 1931, inclusive, the carload shipments other than coal moving on and off the.Talbot Branch. Sheets 1, 2, and the upper sections UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ET AL. 73 ! is known as the Horseshoe vein. That. place is close to the south mine of the Teton property. The vein ‘is between 8 and 9 feet in thickness and has a good quality of coal. As far as I could see the quality of the coal was the same thing as the coal found at the 600-foot depth in the Teton property. The pitch of the vein was between 65 and 80 degrees. r To convince myself that the veins went through, © drove a cross- cut east from where the supposed line went, or from the shaft that we had sunk on, to see whether the Brown Bear came through into. that country, the same as the Horseshoe did. ‘I found that the ° Brown Bear came through, as I thought that it would do and as it proved to do. . | On the Superior property the Brown Bear vein was recognized as the same’ Brown Bear as over in the Teten property because of tke parting in the vein. Two hundred and seventy-five feet of tunnel were driven through on the Superior property at a depth of 50 feet, and the pitch of the vein was about 60 degrees, Three hundred and fifty tons of coal were taken out of there in the last six months; part of it was sold on the dump and part of it was shipped. There was no trouble in disposing of the coal mined and we had the opportunity to dispose of more coal, but we were not equipped and were not in a position to produce any more coal because pf a lack of - 121 finances. The present indications are that we can start lower down and get another lift and mine this coal profitably. On the western boundary of the Superior property is the De Costa vein. The Superior Gempany has cabins equipped to take care of - twenty-five men. They have a big engine and a hoisting outfit. It can lift a ton out of the shaft from a depth of 134 feet. In this vein after going below the 20-foot depth from the surface coal the condi- tion and quality of the coal were good and practically the same . down 145 feet. There is timbér enough on the Superior property to last-for years to come. | It is only about three-quarters of a mile from this mine down to the south stub of the wye, and it is a moderate down grade from the mine to the place where loading could be made. 3 Cross-examination A parting of a seam is‘a seam of dirt or rock between the coal. In the Brown Bear vein it is about’ 5 inches wide. My work in the Brewn Bear vein was in the big tunnel and also in the Hillman tunnel. My principal work has been in the vein and not in the tun- »nel work. I had to finance myself in so far 4s I worked.. I have been employing nebody on pay-roll this winter. | a The.Superior shaft stopped at the 134-foot depth because they _ Were too close te the southern boundary of the Samuels property or Teton coal mine, and had no ground to drift i to, and we lost. the shaft there. The shaft is now full of water. ’ At Talbot there are four separate operating companies; the Superior, the Idaho Coal , a : =) ? Sea tic ia Nar th ot cig si aa SAN Bs RIVAL BEN 74 UNITED STATES ET AL. VS; STATE OF IDAHO, J. D. RIGNEY, ET AL, Company, the Gem State, and the Pinter. The tipple is owned by the Gem State Coal Company. The other three mines load by wagon and haul to the cars. The Cluff mine or the Idaho coal mine 122 was on fire this winter and they sealed it up. It has not been _ worked since. — nelle The Gem State, the Superior, and the Pinter companies mined coal this winter. The Brown Bear vein that is cross-cut and tapped is 80 feet east of the shaft that was put down by the Superior Com- _ pany. The vein is about 4) feet wide with a seam of dirt 6 to 8 inches wide, about midway. Separate handling is made of the dirt and the coal. Redirect examination The color of this parting seam is a brown, rather talcy substance, all shot with particles of coal. It is a distinct color from the coal and rather flaky, easily distinguished in mining. It stays in big. “blocky chunks, and there is no trouvle picking it out from the coal. There was a pitch that occurred at a depth of 134 feet, and the vein pinched down from 8 feet to 24% feet. From that place we drifted north about 150 feet and the width of the coal vein came back to normal, between 8 and § . his pinched place lasted for 90 or 25 feet-as we drifted north..ard. However, that is character- istic of these veins to change their thickness from time to time, The vein in'the Cluff mine is from 8 feet to 60 feet in thickness. It was a clean coal,-with no rock or partings of any kind, but was more or less friable. The mine is about a mile-north and a little east of the Teton mine, but the property joins the Teton property. Recross-examination ‘In mining “ friable ” means brittle; it breaks up easily and slacks quickly when exposed to the air. There is a mechanical picker to separate the dirt from the coal (T. 217-241). 123 - Pocate.io, Inano, May 17, 1932. Counsel offered in evidence Exhibit No. 19, which is a tariff showing rates on coal from the Utah and Wyoming fields to the destinations shown therein. The exhibit was received in evidence. Counsel also offered in evidence Exhibit No. 20, entitled “ Supple- ment No. 7 to Oregon Short Line Railroad Tariff I. C. C. 2079, effective January 16, 1919”, which was received in evidence; and Exhibit No. 21, entitled “Supplement No. 5 to Oregon Short Line Tariff I. C. C: 2075, effective January 16, 1919, except as noted in. individual items ”, was offered and received in evidence. One more item should be included. The tariff rate to Pocatello, Idaho from Talbot is $2.20 on the lump and $2.00 on the slack coal. UNITED STATES ET AL. VS. STATE OF IDAHO, J. D. RIGNEY, ETAL. 75* Direct examination _ H. F. Samuers, Resident of Sam, Teton County, Idaho. The witness stated that he was interested in arid had been engaged in metal ntining in northern Idaho for years, and that he had be- come interested in the Teton coal mines in January 1924. Prior to this time the witness had been mining in the Coeur d’Alene area, being one of thte parties that opened up the Hercules mine: - He also opened up the Stewart and ‘developed that into a producing mine. The third property opened up was known as the Success, which was developed into a producing mine and later sold. The next move in regard to mining was to take an interest in the- Teton coal, properties. At that time not very much develop- . 124° ment had been done on the Teton property. The inain thing. was getting a railroad up to it sq it could be developed and operated on a larger scale. At that time the mine had been closed: there had been no development for several years, It had been in litigation. . There was a foreclosure of a bond issue upon the sale from the | United States District Court, and the property was bought in by the Columbia Trust Company as trustee for the bondholders. It was bought in for $508,000. or $509,000. a I became interested in the Teton Coal Company when I bought stock in it. The company had been organized a year‘ before. There had been some development work—the work about a mile and a half from the railroad on the Brown Bear; there also had been work done on: the Horséshoe, on out to the Brown cut, or the Bell cut, I should say, at the Mormon entry, and also at the Boise vein, which had been worked, quite-a little coal: take [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0022%3A1. Public record. Not legal advice.