Butchers' & Drovers' Stock-Yards Co. v. Louisville & N. R. Co.

• Decision Date: 05 February 1895
• Docket Number: 253.
• Citation: 67 F. 35
• Parties: BUTCHERS' & DROVERS' STOCK-YARDS CO. v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

67 F. 35

BUTCHERS' & DROVERS' STOCK-YARDS CO. v. LOUISVILLE & N.R. CO.

No. 253.

United States Court of Appeals, Sixth Circuit.

February 5, 1895

This is an action in equity by a stock-yards company for a mandatory injunction to compel a railroad company to build, or to allow to be built, a side track connecting a spur track of the railroad company with the stock yards of the complainant, and there to deliver and receive all cattle consigned to and shipped by the complainant. The defendant answered, and the cause was heard on pleadings and evidence, and resulted in a dismissal of the bill. The complainant appeals. The facts are substantially as follows: The complainant, the Butchers' & Drovers' Stock-Yards Company, was organized under the laws of Tennessee, and entered upon its business in 1889. It has a stock yard within the city limits of the city of Nashville, and near to the business center thereof. The Louisville & Nashville Railroad Company is a corporation of Kentucky, whose line of railroad extends to and through Nashville from Louisville. In 1890 the city council of the city of Nashville passed an ordinance permitting the defendant company to lay a spur track from its main track along Front street in said city. The ordinance contained a provision requiring defendant to furnish persons, whose warehouses abutted on Front street, just and equal facilities for shipping and receiving freight in car-load lots. The defendant company, because of this provision, declined to accept the privileges conferred by the ordinance. Thereupon another ordinance was passed, granting the defendant the right to lay down in Front street a single track from its main track on Market street, with all necessary switches and turnouts. It provided that no part of said spur track should at any time be used by the railroad company, its patrons or others, as a storage place for loaded or empty cars, and that it should on be used for promptly delivering and receiving freight along the line thereof; and the switching of cars not directly connected with or used for this purpose was expressly prohibited. It was further provided that the defendant company should transfer freight received from other roads to parties on the spur track upon payment of an amount not exceeding 1 cent per 100 pounds in car-load lots. W. G Bush and others, engaged in the manufacturing business along Front street, in order to induce the railroad company to lay the track permitted in the ordinance, entered into a contract with the railroad company to lay the track permitted in the ordinance, entered into a contract with the railroad company by which they agreed to pay not exceeding $6,000 to defray the expenses of laying the spur track, which was about one mile in length. Sidings were laid by the defendant from the spur track to the property of W. G. Bush & Co., Jacob Shaffer, Levi Langham, and the Capitol Electric Company, and others, under contracts made by the railroad company with these parties, in each of which the defendant retained the right to disconnect the siding from the spur track an any time without notice to the other party. The persons or firms with whom these contracts were made were manufacturing firms or coal dealers. They all owned land abutting on Front street. Complainant is engaged in receiving, feeding weighing, selling, and shipping live stock for the general public. Its yards are a block away from the defendant's main line. They do not abut immediately on Front street. Between them and that street there is a strip of land 40 feet wide, belonging to the city, which was granted to the city to be used as a public landing, under the direction and control of its mayor and aldermen, and to be held to the only proper use and benefit and behoof of said mayor, aldermen, and their successors in office, forever. At the time of making the demand hereinafter stated, neither the complainant nor the defendant had any right to construct a siding upon this 40-foot strip. After the demand was made, however, on October 3, 1892, and before the filing of the bill, the council of the city of Nashville gave a license to complainant to construct a side track to Front street across this strip. In 1891, after the spur track and the sidings already alluded to had been constructed, the complainant requested the defendant that a siding be so constructed in front of complainant's property as to allow the transportation of live stock to and from its establishment in car-load lots, and that the same facilities for transportation be afforded to it as were enjoyed by Bush & Co. and the others who then had sidings. One of the vice presidents of the defendant gave complainant reason to believe that the request would be acted upon favorably, but subsequently wrote that he had no authority whatever in the matter. In February, 1892, complainant requested from the defendant a statement of the conditions upon which defendant would consent to the construction of the switch. In March following, the complainant made a contract with Bush & Co., in which it was agreed that, if the complainant would pay Bush & Co. a ratable share of the original cost for constructing the same, the complainant might use the spur track. Shortly after, defendant's attorney answered complainant's request, and stated that after, defendant's attorney answered complainant's request, and stated that, inasmuch as the siding proposed appeared to be desired solely for the purpose of receiving and delivering live stock at defendant's yards, and the railroad company had provided a station for this purpose at Nashville, the establishment of another was declined.

The stock-yards station referred to was that of the Union Stock-Yards Company. In 1880, the Louisville & Nashville Railroad Company, the Nashville, Chattanooga & St. Louis Railroad Company, and the Union Stock-Yards Company had entered into the following contract: 'This article of agreement, made and entered into this twenty-fifth day of March, one thousand eight hundred and eighty, between the Louisville & Nashville Railroad Company and the Nashville Chattanooga & St. Louis Railroad Company, (for the establishment of) a first-class stock yard, including chutes of sufficient capacity and suitable accommodations for the carrying out of the contract; said stock yards always to be kept properly equipped with suitable fencing, feeding means, shelter, and other conveniences usual and customary in the best class of stock yards in the country for the proper management of said stock yard. The party of the second part further agrees to keep at hand a sufficient number of skilled workmen to perform the operation herein agreed to be done by said party of the second part, and generally to do such work and labor as is usually provided by the managers of stock yards of the best class, and especially that they shall be skilled and well qualified to load and unload any and all live stock which may be received or delivered by said parties of the first part to said stock yards to be loaded or unloaded. And said party of the second part further agrees and promises to load and unload and take proper care of all live stock, at risk of damage of said party of the second part, that may require such loading or unloading on or from cars at said stock yards, and to charge therefor no more than is charged for similar services at the time when rendered by the operators of other stock yards in neighboring cities, or no more than may be agreed on hereafter between the parties to this contract, and in no event to charge more than sixty cents per car load for loading or unloading, and to make no charge for loading or unloading less than car loads. The party of the second part further agrees that all charges for keeping, feeding, or caring for live stock coming to said party of the second part under this contract, direct or indirect, shall be reasonable, and not greater than the charge for similar work, caring, feeding, etc., by other first-class stock yards in neighboring cities. And for all charges upon stock delivered by the said parties of the first part to said party of the second part the party of the second part shall be responsible, and shall pay said charges promptly to the parties of the first part, in such manner and at such times as may be directed by the proper officers of the parties of the first part. In all matters relating to the shipment and delivery of stock at said yard, unless exception shall be made hereafter, the party of the second part is to act as agent of the shipper or consignee, respectively, and to answer for and be responsible to him for the proper conduct and management of the shipment of the same, if being distinctly understood that the liability of the parties of the first part shall cease upon the delivery of the cars containing the live stock as hereinafter specified, and shall not commence until cars are properly loaded, and that in loading and unloading said stock to and from the cars of the parties of the first part the party of the second part is acting as agent of the shippers or consignees. It is further agreed by the party of the second part that the management of the stock yard shall always be entirely acceptable to the management of the parties of the first part. The parties of the first part agree to pay to the party of the second part the sum of sixty cents per car load as above for each car load of stock loaded or unloaded at said yard, from or for the roads of the parties of the first part. And they further agree to maintain and keep in good order and repair the necessary tracks, switches, sidings, and all other necessary means for loading and unloading, and other suitable and proper conveniences and appurtenances usually and customarily furnished by railroads to...