165 F. 844 | 8th Cir. | 1908
(after stating the facts as above). Counsel for the appellants base their' contention that the court below was in error in its ruling in this case upon two propositions. They insist that the Great Western Company had no right under the decree of 1903 to deliver through cars or trains from its line at Council Bluffs to the Rock Island Company at South Omaha over the Pacific Company’s connection with that company at that place. Their second proposition is that the Great Western Company had no right to transfer cars to the Rock Island Company with its own engines over this connection except for the purpose of completing the through passage of such cars from its line in Council Bluffs to the Rock Island Company at South Omaha, and this (1) because no such right was contemplated or secured by the decree, (2) because the use of the tracks and connections of the Union Pacific Company for such a purpose would cause great congestion of traffic on its tracks in Omaha and would disable it from fairly discharging its duty to the public, and (3) because the extent of the Great Western Company’s rights are measured by those of the Rock Island Company and those of the contract tenants of the Pacific Company, who had no such rights.
The argument of counsel in support of their first proposition is that Congress in the passage of the acts of July 25, 1866, c. 246, 14 Stat. 244, and of February 24, 1871, c. 67, 16 Stat. 430, did not contemplate or intend to require the Pacific Company to permit the use of its tracks by other railroad companies to effect an actual interchange of cars and business between the latter, and that the true meaning and effect of the decree of August, 1903, was not to permit the Mason City Company to use the connections of the Pacific Company’s tracks with other railroads reaching them from the West, but merely to allow that company to make and úse a physical connection of its tracks-with those of the Union Pacific Company at Council Bluffs, and to
The duly of the Union Pacific Company to permit the use of its main and passing tracks between Council Bluffs and South Omaha by tin: Great Western Railway Company was imposed upon it by Act July 25, 1866, c. 246, 14 Stat. 244, and Act Eeb. 24, 1871, c. 67, 16 Stat. 430, and the character and limits of that duty were fixed by the decree of 1903. The Pacific Company has claimed from the beginning, and still insists, that it was neither empowered nor required by those acts, or by any other law, to permit any other company to move with the engines of the latter any cars or traffic over any of its railroad tracks, and it has always insisted that the contracts it made to that effect with the Rock island Company and the St. Paul Company in 1890 and with the Northwestern Company in 1898 were beyond its corporate powers. These claims have been litigated at various times between 1891 and the present day, but no court has ever sustained them. We cannot hope, and shall not endeavor, to review and analyze the acts of 1866 and 1871 more perfectly or to portray more clearly their scope, object, and legal effect than has been repeatedly done by the Supreme Court and by this court. Union Pac. R. Co. v. Chicago, etc., R. Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265; Union Pac. R. Co. v. Chicago, R. I. & P. R. Co., 51 Fed. 309, 2 C. C. A. 174; Union Pacific R. Co. v. Mason City & Ft. Dodge R. Co., 199 U. S. 160, 26 Sup. Ct. 19, 50 L. Ed. 134; Id., 64 C. C. A. 348, 128 Fed. 230. Suffice it to say that the public policy which
When the Mason City Company, whose railroad extended from the East to Council Bluffs, applied for permission to use the tracks of the Union Pacific Company to haul its cars and trains from Council Bluffs to the railroads which terminated at South Omaha, the Pacific Company refused it, and after the Circuit Court entered the decree of 1903 that company strenuously contended in this court and in the Supreme Court that no duty to allow the use of its bridge or any of its tracks by other companies to move traffic with their engines was imposed upon it by the acts of Congress, and that if any such duty was created it did not require that company to permit such use of its tracks between Omaha and South Omaha southwest of Twentieth street. This court and the Supreme Court held otherwise, and affirmed the decree below. Did that decree empower the Mason City Company and its lessee, the Great Western Company, to haul a car or train consigned from its railroad east of Council Bluffs to the Rock Island Company west of South Omaha over the connection of the Union Pacific tracks with those of the Rock Island Company about a mile west of the stockyards at that place for the purpose of delivering that car or train to the latter company? The express adjudication of that decree is that the Mason City Company and its lessee are entitled to the full, equal, and joint use of the main and passing tracks of the Union Pacific Company from their eastern terminus in Council Bluffs “to a connection with the Union Stockyards Railway and the other railroads connecting with the Union Pacific Railroad at South Omaha, * * * also the connections with the Union Stockyards tracks in South Omaha and with the tracks of all other railroads which now or hereafter may be connected at or near South Omaha with the tracks of the Union Pacific Railroad Company” to the same extent stated in the contracts with the Rock Island Company, the St. Paul Company, and the Northwestern Company. The contract with the Rock Island Company made in 1890 — and the others are similar — granted to that company the joint and equal use of the Pacific Company’s main and passing tracks between the eastern terminus of such tracks in Council Bluffs' and a line drawn at right angles across said tracks within 1% miles southerly of its passenger station in Omaha, and the joint and equal use of its connections with the Union Stockyards tracks in South Omaha and conveniently located grounds in South Omaha on which the Rock Island Company might construct and maintain for its exclusive use tracks aggregating 3,000
The second proposition is that: the Mason City Company had no right to move cars with its own engines over the connection of the Union Pacific tracks with the tracks of the Rock Island Company at South Omaha, or from or to its freightyard and grainyard in Omaha, except to effect and complete a transfer of such cars across the gap between South Omaha and Council Bluffs; that it had no right to the use of this connection to exchange between other railroad companies cars which did not necessarily pass over the bridge in order to effect their trips. Upon its face the decree does not limit the use adjudged to the transfer of through cars or traffic. It grants a use joint and equal with that enjoyed by the Pacific Company itself, and that company undoubtedly had the right to use this connection to transfer cars to and from its yards that were not required to cross the river. It is argued that this apparent meaning of the words of the decree should be restricted by construction to the grant of a use for through traffic only because the primary purpose of the provisions of the acts of 1866 and 1871, which required the Pacific Company to allow this use, was to
It is true that the object of the requirement of the acts of Congress was to bridge the transportation gap and to facilitate the transfer of cars passing between railroads east and railroads west of the Missouri river, but this fact did not deprive the court which was called upon to enforce this legislation of its jurisdiction to prescribe the limits and the terms of the use which the Pacific Company should allow, nor of its power and duty to exercise a wide and wise judicial discretion in fixing those limits and terms. What those should be were questions necessarily involved in the suit which resulted in the decree of 1903. There was much more reason to contend that Congress did not intend to allow the use by other companies of the Pacific Company’s tracks and connections south and west of Twentieth street, a use in no way indispensable to the transportation of cars across the river, than there is to argue that it did not purpose to permit the use of those tracks and connections by a company which already has the right to use them for through cars, to move cars to and from its yards in Omaha from and to other railroads with which those tracks connect. And yet the Supreme Court denied the former contention. The questions whether or not these acts of Congress authorize, and Congress intended, that the use now claimed should be permitted, was open to litigation, and was necessarily decided in the original suit, and it is too late for the parties to that litigation to debate that issue now, for in a second controversy between the same parties, or their privies, not only every matter offered, but every matter which might have been offered, to sustain or defeat, in whole or in part, the cause of action, is rendered res ad judicata upon the merits by the former judgment. Cromwell v. County of Sac, 94 U. S. 351, 352, 24 L. Ed. 195; Dickson v. Wilkinson, 3 How. 57, 61, 11 L. Ed. 491; Dimock v. Copper Co., 117 U. S. 559, 565, 6 Sup. Ct. 855, 29 L. Ed. 994; Commissioners v. Platt, 79 Fed. 567, 571, 572, 25 C. C. A. 87, 91, 92; St. Louis, K. C. & C. R. Co. v. Wabash R. Co., 152 Fed. 849, 861, 81 C. C. A. 643, 655.
The decree by its terms adjudges to the Mason City Company and its lessee, not the joint use of the Pacific Company’s tracks and of its connection with the Rock Island Company in question for the transfer of through cars, but the unrestricted joint use thereof to the same extent that it was granted to the contract tenants. The agreements with those tenants have been searched in vain to find any such restriction. The contract with the Rock Island Company expressly grants to that corporation the joint and equaL use with the Pacific Company of the latter’s main and passing tracks from Council Bluffs to South Omaha, of its connection with its Union Depot tracks in Omaha, and of its connections with the Union Stockyards tracks in South Omaha and by necessary implication of its connections at Council Bluffs with the
It is to be interpreted in the light of the rules and principles of equity and of the opinions of the courts upon which it was based. It may be best construed by placing ourselves as nearly as possible in the position of the court which rendered it at the time it framed it. That court could not have been blind on the one hand to the fact that the Pacific Company was charged with the duty of transporting its own passengers and freight over its bridge and its tracks at Council Bluffs, Omaha, and South Omaha; nor could the court have been blind on the other hand to the facts that every railroad company cannot have entrance to our great cities over tracks of its own; that the interest of the public, which in the end must pay for the use of railroads, and the interest of the railroad companies themselves, alike required that the transportation involved should be conducted with the least capital consistent with safe, prompt, and efficient service; and that, to the end that the multiplication of tracks and the increase of investments therein might be avoided, every railroad track in the three cities should be required to carry all the traffic that it could conveniently bear, St. Louis, Kansas City & C. R. Co. v. Wabash Railroad Company, 152 Fed.
The absence from a decree of any limitation or exception to general terms of known significance raises a persuasive legal presumption that the court intended to make none. And, when the terms of a decree are plain and free from ambiguity, their ordinary meaning and effect may not be lawfully extended or contracted by construction, in the absence of proof to a reasonable certainty that such was the purpose of the court, for the legal presumption is that the judge carefully expressed his deliberate intention therein. St. Louis, K. C. & C. R. Co. v. Wabash R. Co., 152 Fed. 849, 852, 81 C. C. A. 643, 646.
Finally, counsel assert, and they have produced testimony to prove, that if the Mason City Company and its lessee, the Great Western Company, are permitted to make the use they here seek of the Pacific Company’s tracks and connections with other railroads, those facilities will be so burdened that the latter company will be unable to conduct its owh business conveniently and to discharge its duty to the public. If such will be the effect of this use, it was no justification of the violation of the decree and of the injunction. It will be soon enough to consider the effect of this expected overburdening when it becomes an actuality. There was no substantial evidence that any such use had overburdened these tracks or connections when the decree was rendered or when the Pacific Company and its officers disobeyed it.
There was no error in the proceedings in the court below, and the decree it rendered is affirmed.