910.
"DEULREPORTEB,
vol.G3.
RaUWlJiyCQ. v. OsbornEt; control;the decision. the case tlien in both pf the cases last tll.:banch In. other wqr,qs, it was question of, ,ndue discrbnination Inust be determined by the disparity that may exist between. AI. b)cal,rate anQ a jointthro;ugh rate,and that it never follows, as a matter of law, that an undue; has been person or a disparity is shown to exgiven ist a local rateilnd a We J1lust overrule:the last-mentioned contentlQlu>f counsel, tllat the petition in the case at bar stated,' a cause of 'action, ,notwithstanding the previot1shtJings of thIs' in. the case. he'te'tofore cited. In 'corictusion, it is dnl{necessal1'to 'add: thai we have reviewed all of the points to which our attention has been invited by counsel for' plaiillMffin' elTOr, with a viewohho#ing,th:ati the petition stated a cause! ot'action, with 'the result;that'weare notable to say that the counerredinsustalning'the demurrer. Its judgment is,theiefGl'e'a:ftlrmed. I '
J4)llR04rt:ffILlll TRUST. Qp·. v. , GRArJI CABLE;' , ',!' '.
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"< ;;'t',';: i ' ; pO·. (POSTAL TELEI
(Circuit Court,s. D. California.' October '10, 1894.) LGRANT OF, RAILROAD R'IGHTOF WAY':"'F.EE OR EASEME:l!TT, ,f!",,:;:, .' , ' , . '.' . .',. '" , t'll"::, , ': ','
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i
27; 1866 (14 'Stitt. 292); gl'ltiitlng a raill'&t:d'rlght of way over 'publ14l land> as to which no pro-vision is made fOr Jissuing evidence of to t4l'l,raJll'oad various SeCdo,ll!l, f;lf l>ubllcland, f(jr, which ,s.lJ:ue,olt, does not carry the fee, to tb.e rlgb.t but on1y RaHway Co. v. 14 Sup. Ct. 49Gj 152 U. S. 114,explalned. Act COMPETING . . : . DXSCRIMINATING
lilly
.
lil. RAIlJROAbs'- CONTRAcT8.WITB:TELEGR!APlI
A which is a eoml1lon carrier, but, by the act ifi:corporating It. (Act July 27,1$66),.1s declared to be a post route and mUltary cannot make a vn,Ild contract with a telegraph company on .the rlight of way not to furnish facilities for the construction of a C9mpetiDgI.,llne; and it ,ca,qI/.ot, therefore, carry and distribute the construej;j.on of such Une.
InteI'Venti6n by the 'POstal Telegraph Cal:lleOompany in the suit' of the Mercantile Trust Company against thEVAtlantic & Pacific . Railroad Company. For former report, see 63 Fed. 513Lamme &."Wilde andF. J. Loesch,for intervening petitioner. L. M. Estl!prook B., Carpenter, for Western Union Tel. Co. ruling, uppQthe'demurrer to the inCompany adjudged' W line ,Rt and along the ,3ight of war Qt .the.f\.tlMlt1P 8{, PaclflQ Railroad Company tlieNeedlea.andMojafe" iq Hils' judicial district, if such :tl,C)ne with.out lqterference withtb,e.llse of the right of way: I"fLilroad company for ordinary ... The for were' state<} th.eopipioii fl,led by the c()llrt at Postal " " ,_ .' ," :. '. ' ", . , ". " "I '. .". ., : " '; ,
MERCAKTILE TRUST CO. 'V. ATLANTIC & P. R. CO.
911
the time. Thereafter, counsel for the Western Union Telegraph Company, who, by the consent and authority of the receivers of the Atlantic & Pacific Railroad Company, had filed in their name the demurrer, obtained from the court leave to file, and did file, an linswer thereto in the name of the Western Union Telegraph Company; and upon the issues thus joined evidence was taken which shows, among other things, an acceptance by the Postal Telegraph Cable Company of the conditions imposed by the act of congress of July 24, 1866 (14 Stat. 221; Rev. St. § 5263), and that the erection of a line of telegraph by that company upon and along the right of way of the Atlantic & Pacific Railroad Company, from the Needles to Mojave, will not in any manner interfere with the use of the right of way by the railroad company for ordinary travel. If, therefore, the court was right in its ruling upon the demurrer, it follows that by con'gressional grant the Postal Telegraph Cable Company has the right to erect its line of telegraph upon and along the right of way in question. It is, however, urged on behalf of the Western Union Telegraph Company that the ruling of this court upon the demurrer is inconsistent with the decision .of the supreme court in the case of Railway Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496; that tl!te ruling of the supreme court in that case, applied to the grant of the Atlantic & Pacific Railroad Company, shows that that grant conveyed to the Atlantic & Pacific Company the fee of its right of way, free from the operation of the act of July 24, 1866, and from any rights thereby conferred upon telegraph companies complying with its conditions. In ascertaining what a court, in any given case, has decided, the fiI\St important thing to do is to see what was before the court for decision. And so, in looking at the case of Railway Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, it is seen that it was an action of ejectment, involving the right of possession of certain lands situated in section 16 of township 34 in the county of Labette, state of Kansas, occupied and used by the :Missouri, Kansas & Texas Railwu.y Company as part of its right of way, to which it claimed title und.er the act of congress of July 26, 1866, granting lands to the state of Kansas to aid in the construction of a southern branch of the Union Pacific Railway & Telegraph Company from Ft. Riley, Kan., to Ft. Smith, Ark. 14 Stat. 289. That act granted to the state of for the use and benefit of the railroad company, every alternate section of land, or parts thereof, designated by odd numbers, to the extent of 5 alternate sections per mile on each side of its 1'0$..d, and not exceeding in all 10 sections per mile: provided, that· in case it should appear that the United States had, when the line I of the railroad was definitely located, sold any of the sections, or aJny part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement had attached to the same, or that it had been reserved to the United States for any purpose whateVier, then it should be the duty of the secretary of the interior to cause to be selected, for the purposes stated, from the public lands of the United States nearest to the sections specified, so much land as should be equal to the amount of the land sold, reserved, or other-
912
FEDERAL REPORTER,
vol. 63.
or the right of a homestead settlement or pre-emption had attached. But to the act a proviso was attached that any and to:the United States by any aei:of congress, orm, manner, by competent authority, for the purpose of a,icijng lnany object of internal improvement or othel' purposes whatever,were reserved and excepted from the operation of the act, except so far as might be found necessary to locat,e the route of said road through such reserved lands, in which the. right of way ,200 feet in width was thereby granted, subject to the approval of tbepresident of the United States. .It will be see,n that by the last proviso mentioned all lands reserved to the United States by competent authority, for any purpose whatever, were reserved and excepted from the operation of the grant, except as it might "be found necessary to locate the route of the road through such reserved lands, in which case the right of way in, width was thereby granted, subject to the approval of the pre&ident. The aCQQn was brought in one of the courts of the state of. E:ansas by Roberts, who claimed under a patent issued by .that state to: his grantor for the premises as part of the lands ceded to the by congress forscboolpurposes; the patent having bee.n to the grant of July 26, 1866; made by congress to the railw:aYrcompany. At the time of the last-mentioned grant the premises constituted a part of the lands reserved by treaty madean(J;,promulgated in 1825 for tbe use and occupancy of the Osage Indians. Being an ,action of ejectment, the question involved was the right of possession of the lands included in the right of way t4e railway ,company. The trial court gave the plaintiff judgmeJjlilf,. which judgment was, on appeal to the supreme court of lildfirmed. The case having been taken to the supreme court o:fi);l.e United States, that tribunal reversed the judgment of the st3lte" supreme court, holding that under the ((legislation of congress. ll-Dd of Kansa$jand the accepted conditions upon which that state admitted into the Union, that her original claim to the school e\ectioDs.in townships 16 and 36 of the :state was rejected by congress: and. abandoned by the state, and the right of congress was to .the abSQlute control of the lands, thus embraced, and of lands,set'apart for the use of the Indians, until such right should be extinguished. by appropriate legislation. * * * No such right was relinquished until·atter the grant of the right of way act of congress of July 26, 1866, to the Missouri, Kansas $l:, Texas.Railway, and the title of the land composing that right of wayha4 betome vested in thatcompany,"-and further holding that: 18l'lds reserved for the occupancy of are subject to the abSQlutedisposition of congress, and that the possession as well as tbe .faciof ,such lands may be disposed !ot by congress either expressly Qif:.by :necesaaryimplication; that while nothing was said in thegranMo,d:he.l'ailway company of the right of way through the .Osage'·.rese'l'Vstion,iDi,respect to the. Indian occupancy thereof, the uses to whicq the lands within the right of way were to be applied necessar.ily involved their .possession. It is true the court alSQ said that the grant covered ('both the fee and possession, and
MERCANTILE TRUST CO. tI. ATLANTIC & P. R. CO.
913
left no rights on the part of the Indians to be tbesubject of future consideration." But it is to be observed that the question the court was discussing was as to the right of congress to make absolute dispositiou of lands reserved for the use and occupancy of the Indians, the court holding that this right applies both to the fee and the possession. No point appears to have been made in the case as to whether the right of way there granted to the railway company was but an easement, or carried the fee, nor was such point necessarily involved, since the grant of the right of way for the construction of the railroad, whatever its nature, necessarily carried the right of possession thereto, as against any inconsistent use thereof. I do not think, therefore, that the case of Railway Co. v. Roberts should be held to be an adjudication by the' supreme court that a grant of the right of way over the public domain is not the grant of an easement therein, but necessarily carries the fee thereof, or that the court so intended it, especially where, as in- the case at bar, the act of congress grants to the railroad company various sections of the public lands, for which, it is provided,patents shall be issued by the officers of the government, and also grants the right of way lands of the government, for which no provision is made for the issuance of any evidence of title. Of course, this distinction in the grant between the lands granted in aid of the construction of the road, and the right of way therefor, is not conclusive, for the fee of land may be granted by direct act of congress. But, in mY opinion, it strongly indicates that congress did not intend that the grant of the right of way to the Atlantic & Pacific Railroad Com panyshould cover the fee of the lands included only within the right of way, but only such an easement therein as, under the settlEld rules of law, is usually covered by such grants. Williams v. Railway Co. (Wis.) 5 N. W. 482; Lumber Co. v. Harris (Tex. Sup.) 13 S. W.453; 81. Onge v. Day (Colo. Sup.) 18 Pac. 278; Railroad Co. v. Lesueur (Ariz.) 19 Pac. 157; Mills, Em. Dom. § 110. It follows from these views that the ninth clause of the contract entered into June 1,1872, between the Atlantic & Pacific Railroad Company and the Western Union Telegraph Company, referred to in the intervening petition of the Postal Telegraph Cable Company, and set up in the answer of the Western Union Telegraph Company, by which it was, among other things, provided that "the said railroad company further agrees to grant the said telegraph company, as far as it has the right and power so to do, the exclusive right of way, for telegraphic purposes, on and along the line of its road, and will not permit any other person or corporation to construct a line or lines of telegraph along said railroad," was and is ineffectual, as against the congressional grant to the Atlantic & Pacific Railroad Company. The ninth clause of the contract of June 1,1872, further provided, "Nor in any case will it [the Atlantic & Pacific Railroad Company] furnish to such other person or corporation facilities, aid, or assistance in constructing or maintaining such competing lines, which it may lawfully withhold." The contention of the Western Union Telegraph Company is that the Atlantic & Pacific Railroaa Company v.63F.no. 7-58
::'914
;FEDERAL REPORTER,
'i-cfl,nJawfully withholQ all :of·;the'facilities asked! for by the Postal :Telegraph. Cable Co:tnpab;n:ilmd it,is upon that construction of the -c()ntract that the the Postal Company the facilities in question. I am of the opinion that it did not lie in the power :,of the Atlantic & Pacijic Railroad Company to .contract that it would not furnish to anY 4otherperson or corporation than the WestUnionTelegraph06mpany facilities, aid,orassistance in constructing.or maintainirig .a Une or lines of telegraph which might compete with the Western Union Telegraph Company. The Atlantic & Pacific Railroad Company was not incorporated for any such purpose. Thatcompan;y its existence from .the act of congress of July 27, 1866, ,entitled "An act granting lands to aid in the constlluctioD of a railroad and telegllaph line from the stlltes of MissQuriarnd Arkansas to the paci;ficcoast." 14 Stat. 292. By that act the Atlantic &. Pacific RajJroad Company was incorporated, and au.thorizedand e:tnpoweredto layout, locatef · and construct, furnish, maintain, andttnjoy, a continuous railroad and telegraph line, with the "Beginning at OJl near, the town of ,Springfield, in the state GfMissol1ci, thence to the western boundary nne of said state, and by the most eligible railroad route, as shall determined by said company, to a point on the Canadian riveriJhen,ce to the town of Albuquerque, on; the rivm- Del Norte, .and thence, by way of the Aqua Frio; or other suitable pass, to the headwaters of the, Coll>rado Chiquito, and thence the 35th parallel of ,latitude, as near.as· may. be found most suitable for a railway rouie, ,to the Colorado rivet' at snch point· as may. be selected by such railroad compapy for crossing, then'ce by the most prac,ticable and eligible route, to the Pacific" ocean. The eleventh section of the act provided tJ;lat the company so inc()rpol'ated shall be a ,post routeMl;1 military, I'Qadsubject to the use of thelJnited States .for postal,i,m,i1itiU'y, naval, and aU ()ther government service, and .,alsosp,1;lject ,ro sllch regula:tionsas congress may impOse restricting the charges government transportation.. And by the twen,tieth section (),ftheact it was provided "that, the betterto accomplish the object ()f this act, namely, toprom()te the public interest and weitaJ!e by t;J;uvcpnstruction ()f said railroad and telegraph line; and ,}{eeping the SQ;IDe in working order, and to secure to the government .at aU times,but particularly in time of war, the'ulle and benefits of the. samefQrpostal, military, and other purposes, c()ngress may at any, time, baving due regard for the rights of said Atlantic & Pacific Railr,oad Company,' add to, alter, amend, or repeal this act." The Atlantic & Pacific Railroad Company was thus created; and made a great highway of communication, with the declared object -of promoting..the public interest and welfare; . There is not a :syllable in the; act indicating that it was intended by congress to be.used as. an'instrumeht for theliuilding upor\fostering of any monop()Iy ();fanycharacter, or that itrshould beperrhitted to do any act with the objects for which it was created. .If it may lawfullY withhold facilities for the transportation of material .and supplies t()rthe erection ofa1ine or lines of telegraph which
MERCANTILE TRUST CO. V. ATLANTIC & P. R. CO.
915
may come inoto competition with some other line, no reason is perceived whyS! may not also withhold facilities for the transportation of any other kind of freight in the interest of some one or more favored persons or corporations. - The Atlantic & Pacific Railroad Company is .a common carrier, and common carriage must be kept open to ruB alike, undel' like circumstances and conditions. What the considerations were that induced the Atlantic & Pacific Company to make the stipulation in question is immaterial. Its purpose plainly was to prevent competition. In the present age of progress the telegraph is as essential to. the needs and comforts of the public as the railroads themselves. "Telegraphs," said 1\11'. Wharton in a note to the case. of .W. U. Tel. Co. v. Burlington & S. Ry. Co., 11 Fed. 12, "are now essential to business, and, as such, are to be kept open to competition, unless the legislature should otherwise determine, iJll the same way that common carriage is to be kept open to competition. Any agreement to give a particular line of carriers monopoly in a state would not, without legislative aid, be enforced, nor should a contract to give a monopoly to a particular telegraph company." The Atlantic & Pacific Railroad Company, being a common carrier, is bound to afford every telegraph company, as well as every other company or person, equal transportation facilities under like cir. cumstances and conditions; and its agreement to withhold from any other company or perSon than the Western Union Telegraph Company such: facilities is, in my opinion, at variance with the declared purposes for which that company was created, against public policy, in restraint of trade, and void. It was stated by counsel for the receivers, in open court, that but for the provisions .of the contract of June 1,1872, to which reference. hU$ 1;leen made, they would afford the facilities asked for by the Postal Telegraph Cable Company, namely, the distribution of the necessary material between the regular stations, and the furnish: ing of water to the force engaged in the construction of that line. The evidence shows, ,what is also judicially known to the court, that the right of way of the Atlantic & Pacific Company between the Needles and Mojave is over a desert country, and that the railroad company, through the receivers, has possession and control of all the available water supply upon and along the right of way. Evidence was also- given to the effect that it is customary for· the railroad company to furnish: miners and others parties at and between their stations with water for their necessities, upon compensation paid therefor, and that the poles and other material can be distributed, and water furnished to the petitioner, without any inconvenience, and in with the usual and ordinary method of transacting· the business of the railroad between the Needles arid ]£ojave. That being so, and there being no valid contract preventing it, there can certainly be no valid reason why the receivers should not distribute the poles and other material between stations, for a just compensation. It is in evidence, and is also a matter of common knowledge, that the erection of another line of along the right of way in question will be a direct
916
benefit to the railroad 'oompany, in that it will increase its telegraphi:o facilities, especial'ly in case of accident to or other interrupti&n of the lines of theiWestern Union Company. In respect to water, if the companyhliS any to spare, I do not see that the furnishingof it to th()Be in need along its line can be objected to by any one,-certainly, not by one who has no interest therein. The furni:shing of water, under the circumstances appearing, is not in· consistent with any of the purposes for which the Atlantic & Pacifio Railroad Company was 'created; and, if those administering the property can earn something thereby for the owners of the property, there Is no good reason why they should not do so. An order will be en tere6 directing the receivers to afford the facilities asked for by the:petitidn, upon just compensation. i
== OHARLESTON, IOE MANUF'GCO. v. JOYOE.
(Cfi'cuit Court of Appellls, Fourth Circuit. No. 84.
October 2. 1894.)
1.
OONTRACT'J'OR'BoRING ARTESIAN WELL-CONSTRUCTION.
a.
Wheth,el'll.. l,2-inch artesian well is one which has a bore of 12 inches, or one wWcb, ll:t,ter being cased, has a fiow of 12 inches, depends on evidence. and is a question for the jury.
SAMm.
artesian well. it appeared that plaintiff sunk a well having a 12·fnch bore, with of defendant's under the supervision of Its 'vice .President and chief engineer, without any suggestion that the work was not being done in accordance with the contract. Held, that thejUl7,properly construed the contract·to mean is; well having a 12-inch :flow after being cased. SAMlll-RIlSCtSSION BY MUTUAL AGREElIlENT.
In an action against a corporation on a contract for boring a 12-inch
The contract gave plainti1f the privilege of changing the size of the well to, 8lh thches, but reqUired him to carry a 10-inch hole to a dellth of 1,300 feet,if possible. When a depth of 1,016 feet was reached with a 10inch pipe; It waS impossible to drive it further with the 1,100-pound maul In use, was danger of the pipe's collapse ifit was driven further, and plainU«·, l)l'flPosed to use an 8¥.i-inch pipe. Sl1ch facts were stated to defendant's 'vice president and chief engineer, arid to its treasurer and manager,'tlie president being absent. These latter asked permission to use It mauLwaLghing 4,000 pounds at their own risk and continue with and agreed that if they spoiled the well it should be their 19t;1l;l' .};'lfintiff consented thereto, and while such ofllcerswere using the heavl ptatll the pipe collapsed. president was at a directors' meetingiit'tliecompany's office, near tlle well,'"While the 4.0oo-pound maul was beingmsed. and no objection waS J1lade by him. .Held, that it was not error to ,mbmit to the jury the question whether. the original contract was resci1J.ded when a depth of 1,016 feet was relj,Ched, and a new arrangement roMe by the company, through its agents, by which they undertook to complete the well. ,.. OF DAMAGES.
4..
work of any fi. SA)1:E.
agreement, It it was made, plaintiff was entitled, for to whatever sucJ:!work Was worth, and the cost In the absence of any definite contract as toprice. ' .' .' ·..... . .' .
In sucli case, plaintiff was entitledtO"cliarge the contract price for the work done up to the time the new contract was made.
"':'.,