92 Tenn. 681 | Tenn. | 1893
On the twenty-first day of June, 1880, the Mississippi and Tennessee Railroad Company mad« a contract with the Taxing District of Shelby County to construct what is called, in the written agreement, a “Dnion Passenger and Freight Railroad” through the city of Memphis, from a point in the southern to a point in the northern part of the city.
By the sixteenth section of the contract it is provided that the Mississippi and Tennessee Railroad Company shall permit any other railroads terminating in the Taxing District of Memphis to use and enjoy said track and the rights' and privileges granted, upon payment by such other rail
Under the authority conferred "by this contract, and in accordance with its provisions, the Mississippi and Tennessee Railroad Company constructed the road, and, after it was finished, the Chesapeake, Ohio and South-western Railroad Company and the Louisville, New Orleans and Texas Railroad Company each purchased a one-third interest therein, paying to the Mississippi and Tennessee Company one-third of the cost of construction. These several railroads were afterward leased or ¿mortgaged, the details of which are not now material.
In July, 1889, the Louisville and Nashville Railroad Company was granted permission by the Taxing District of Shelby County to buy an interest in the line under said contract, and to use the name of the taxing district in any litigation nec7 essary to secure the interest.
Thereupon, the Louisville and Nashville Railroad Company applied to the defendant companies, asking to be allowed to pay its pro rata, and have the joint use of said track, which was refused, and
Eoth the Louisville and Nashville Eailroad Company and the Taxing District of Shelby County are parties complainant to the bill, and the prayer is that the Louisville' and Nashville Eailroad Company be allowed to purchase an interest of one-fourth in said line upon the payment of its pro rata share, according to the terms of the contract, the amount to be fixed by the Court, upon proof, and that it have such' rights and be subject to such conditions as are imposed by the contract upon the Mississippi and Tennessee Eailroad Company.
The defendants demurred to the bill, on the .ground that the Louisville and Nashville Eailroad Company had not made sufficient tender and offer to be bound by the terms of the contract originally made with the city, whereupon complainants tendered an amended bill, meeting those objections, and asked to be allowed to file the same, but the Chancellor declined to allow it to be filed, and overruled the demurrer, on the ground that the original bill was sufficient to meet all the objections raised.
It appears that a small part, perhaps one-seventh, of the right of way for the railroad line is over private property, bought or condemned by the Mississippi and Tennessee Eailroad, for track purposes, and the remainder is over the streets and other public property of the taxing district.
It is insisted that for thirty years the Louisville . and Nashville Railroad Company has operated a line of road running into the city of Memphis before this belt or connecting line was built, and that it has waited nine years after the line was completed before claiming any rights; that in the meantime two other roads have come into the joint ownership of the line under the contract,, and that the reservation in the contract in favor of other lines has thus been exhausted, and the Louisville and Nashville Railroad Company cut "off by its own laches and prior occupation; and that the line is already burdened with as much traffic as .it can accommodate, and that the admission of another road would be burdensome, and impair the efficiency and use of the line for purposes of travel and traffic.
It will be noted that the contract between the taxing district and the Mississippi and Tennessee Railroad Company places no limit on the time when other • roads may come in under the contract,
Nor or we able to see how the defendant companies are in any way injured or prejudiced by the delay of the Louisville and Nashville Railroad Company to come in under the contract, as they have been in possession and occupancy of the line and enjoying its benefits in the meantime.
It further appears that the cars of the Louisville and Nashville Railroad Company are now passing over the' line, and paying toll therefor to the defendant companies. It is also made to appear that the capacity of the line could be -largely increased, if the operation of the same- was under one management, controlled by the several parties interested, instead of being operated by each company independently of the others.
It was evidently the object of the contract, so far as the taxing district is concerned, to furnish a convenient means of passage through the city over a line connecting the main lines of railroad north and south, thus making a matter of benefit
It is insisted, however, that the Courts cannot properly enforce the contract, because it would involve a continuing oversight, and the enforcement of personal services and continuing duties, which the Courts will not undertake.
We can see no valid reason yvhy several owners may not operate and own the same line of road, each having an undivided interest therein, in the same way that any other easement or property might be owned and operated by several persons. This, in fact, is now being done over this line by the three roads that have already acquired an interest therein. We can see no reason why several companies may not own in common this line of road, as well as they could a bridge or a union depot, or, as we often see, a common entrance or stairway to several buildings owned by different parties.
From the nature of this case, it is impracticable for the several roads each to have a separate line of road through the city, and the different companies, as well as the city and public generally, are interested in having a connecting line open, under proper regulations, to the use' of all, and not to be monopolized by one to the injury
We do not think such a condition is presented under the facts in this'case. Certainly the relative rights and obligations' of the parties can be fixed by agreement of parties if practicable, and by the interposition of the Courts if necessary.
We are of opinion that- the decree of the Chancellor is correct in directing the pro rata to be paid into Court by the Louisville and Nashville Railroad Company instead of being paid direct to the Mississippi and Tennessee Company.
Two other companies have acquired an interest in the property since it was built, and mortgages have been executed covering this line, and it is eminently proper that the fund be paid into Court and paid out to . the several parties entitled, as the proof may show their rights therein. It is also altogether proper that the Louisville and Nashville Railroad Company, on entering into the joint ownership of the track, should pay one-fourtli of the operating expenses so long as the four roads are interested therein. If other roads should hereafter be admitted under the contract, it would be necessary that the pro rata of expenses be readjusted to meet the changed condition of ownership.
It is no bar to the relief sought that a portion of the right of way of the line is over private grounds, which have been ' purchased or condemned by the Mississippi and Tennessee Company. If there were any thing in it as an original proposition, it cannot now be set up in face of the agreement made with the taxing district to allow other roads to enter upon the line. It was in consideration of this agreement that the right of way was granted by the city over its streets and other public property, and defendants are estopped to exclude others by the very terms of the contract.
Again, it is insisted that the' Louisville and Nashville Railroad Company is a foreign corporation ; that it only has a terminus in Memphis by virtue of its control of the Memphis and Ohio Railroad, and that it can only operate its line under the provisions of the charter of the latter-named company, afterwards called the Nashville and Memphis Railroad Company, which provides that a
In considering this question, it is well to note that the Louisville and Nashville Eailroad Company is now running its ears over this line propelled by steam, not only by sufferance of the defendant companies, but under contract with them, paying a fixed tax or rental therefor, and the city is not only not complaining, but is joining in this action to enable the. complainant railroad to more satisfactorily operate the same by steam.
"We think this right to. operate a line west of Bayou Gayoso by the Louisville and Nashville Eail-road Company, as the successor of the Nashville and Memphis and Memphis and Ohio Eoads, is no longer an open question.
By the Acts of 1851-2, Section 16, page 212, certain railroad companies (the Nashville and Memphis among them) were granted the right and given the authority to unite with each other, both as to their main stems and branches, and under this Act the Louisville and Nashville Eailroad Company, operating the Memphis and Ohio or Nashville and Memphis Eailroad, by consent of the city, could have constructed this or another line, connecting its
Again, by the Act of 1860, the Memphis and Ohio Kailroad was permitted to condemn lands from its depot on Main Street to its depot in the navy yard.
By the Act of 1879, page 18, the regulation of this matter was placed under the control of the taxing district. See also Railroad v. Bingham, 3 Pickle, 527; Dillon on Municipal Corporations, Secs. 558-60; 2 Woods Railway Law, 740.
Por years the Memphis and Ohio Kailroad Company operated a line with steam power to the navy yard west of the bayou, and the city authorities, before this contract was entered into, had recognized and provided for its use by leasing to the railroad depot grounds west of the bayou, which carried with it, by necessary implication, the right of. access to the same by the steam cars used by the road. But under this contract, and by the bringing of this suit, the taxing district expressly sanctions the use of steam power over the line, and we are at a loss to see how defendant companies can complain.
We are also at a loss to see any other reason why the Louisville and Nashville Kailroad Company, if a foreign corporation, can be excluded from the benefits of this contract. Its terms are broad enough to embrace all railroads, whether operating under domestic or foreign charters, provided they have a terminus in the taxing district.
The suit was brought before the passage of the ■ Act of 1891, requiring foreign corporations to register their charters with the Secretary of State, and a memorandum of the same in counties where they propose to do business or wish to acquire property. Moreover, it does not appear that the Louisville and Nashville Railroad Company has not complied with that Act, if it be necessary, which we are not now called upon to decide.
Several . exceptions were taken to the admission and rejection of testimony, and- errors are assigned on this account. "We find no reversible error in the action of the Court, and need not pass more definitely upon the exceptions made.
We are satisfied the decree of the Chancellor •is correct, and affirm the same with costs, and the cause is remanded for further proceedings.