Chicago Railway Company v. Denver Railroad & G. Railroad Company

STATEMENT BY MR. JUSTICE BROWN.

This was a bill in equity brought by the Chicago, Rock Island & Pacific Railway Company, (hereafter designated as the Rock Island Company,) against the Denver & Rio Grande Railroad Company, (hereinafter designated as the Denver Company,) to enforce an alleged right to certain terminal facilities at the city of Denver, and for certain incidental purposes, hereinafter stated in the opinion. There was also a cross-bill filed to enjoin the plaintiff from making use of such facilities, and for other purposes, which was subsequently dismissed by stipulation of the parties.

The litigation arose out of a contract entered into on the 15th day of February, 1888, between the Denver Company and the Chicago, Rock Island & Colorado Company, (hereinafter designated as the Chicago Company,) for the joint use and possession of the Denver road between Denver and Pueblo, the material portions of which are printed in the margin.

Pursuant to article 3, § 10, of this contract, the president of the Chicago Company, on March 17, 1888, gave written notice to the defendant company that the Chicago Company elected, as provided by the contract of February 15, 1888, 'to build its railway from the western boundary of the state of Kansas to Colorado Springs, and that it will have the same ready for operation on or before the 31st day of December, in the year 1889.' Soon after this the Chicago Company completed its connection with the Denver Company's line at Colorado Springs, and thereafter for some time brought all its trains by the way of Colorado Springs to Denver and Pueblo over the defendant's line. The distance from Denver to Pueblo is about 120 miles; Colorado Springs being an intermediate station, nearly midway between the termini.

In April, 1889, the Rock Island Company, claiming to be the successor in interest of the Chicago Company under the contract, assumed the operation of that company's line, and about the same time entered into a contract with the Union Pacific Company, by the terms of which the Rock Island Company acquired the right to connect its railway with that of the Union Pacific at Limon, about 90 miles east of Denver, and to run its trains over the track of the Union Pacific from that point to Denver, which was 64 miles shorter than that by Colorado Springs, and over a road the maximum grade of which was much less than the other. From that time to the present the plaintiff has transacted most of its business to and from Denver over the Union Pacific line, bringing the same over no portion of the Denver Company's line; but at the same time has sought to utilize the defendant's terminal facilities at Denver for the handling of its business. It has still continued, however, to send its Pueblo traffic by way of Colorado Springs, and over the line of the defendant's road.

Immediately after its Denver business began to be thus diverted, and on May 10, 1889, the general manager of the Denver Company telegraphed Mr. Cable, the president of the plaintiff company, as follows: 'I have just seen Mr. Allen, general superintendent, and have notified him that, although we are not required by our contract to handle or care for your trains and equipment brought to Denver over the Union Pacific line, we do so temporarily, and with the understanding that the compensation for such service, as also for the use of our tracks for such trains, will be made at an early date.' To this Mr. Cable replied the next day as follows: 'Your telegram received. Of course, any service performed for us, not covered by contract, will be paid for by our company. When I come out in June I will spend time enough with you to take up matters between us that may require attention. I have no doubt that everything can be satisfactorily arranged.'

No payment for the use of such terminal facilities appears, however, to have been made; the plaintiff asserting its right to use these terminals, for its business brought over the Union Pacific tracks, under the contract made with Chicago Company. The parties being unable to agree upon a proper construction of the contract, the defendant gave notice that it would on August 1, 1890, exclude from its Denver terminals all business brought over the Union Pacific tracks. Thereupon the Rock Island Company filed this bill, and applied for a restraining order, which was granted. By amendments and supplemental bill there were brought into the controversy other matters of difference which had arisen between the two companies. Upon the hearing in the circuit court a decree1 was made, settling the rights of the two companies to this constract, (45 Fed.Rep. 304,) from which both parties appealed to this court.

''Thos. F. Withrow'', for Chicago, R. I. & P. Ry. Co.

E. O. Wolcott, for Denver & R. G. R. Co.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.