Baltimore & O.R. Co. v. Western Union Telegraph Co.

• Decision Date: 19 February 1917
• Citation: 241 F. 162
• Parties: BALTIMORE & O.R. CO. v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Southern District of New York

241 F. 162

BALTIMORE & O.R. CO. v. WESTERN UNION TELEGRAPH CO.

United States District Court, S.D. New York.

February 19, 1917

[Copyrighted Material Omitted]

The cause having come up on bill and answer, plaintiff seeks a decree adjudging that: (1) A certain contract between the parties is lawful and in full force and effect; (2) defendant specifically perform the contract; and (3) plaintiff have an injunction against defendant restraining it from violating the provisions of the contract.

On October 15, 1887, the parties entered into the written contract here under consideration. (The numbers hereinafter refer to paragraphs of the contract.)

The Contract.

(1) Enumerated by reference to a schedule the railroads owned by plaintiff (hereinafter called 'Railroad').

(2) Enumerated by reference to a schedule the (a) exclusive railroad wires and (b) commercial wires of defendant (hereinafter called 'Telegraph Co.') and provided that 'exclusive railroad wires' should be deemed to include the necessary instruments and connections, as then located and used on said wires and as necessary to continue in operation the existing effective telegraphic circuits between the several stations and offices of the Railroad in the various places on the routes of the railroads then owned leased, operated or controlled by the Railroad, etc.

(3) The Railroad was to retain the ownership of said 'exclusive railroad wires.'

(4) The Telegraph Co. agreed to maintain, repair, and construct, at its own cost, all the telegraph lines specifically covered by said contract and such additional wires as either the Telegraph Co. or the Railroad might place thereon, the Railroad, however, to furnish the necessary unskilled labor for such maintenance, repairs, and reconstruction, and the necessary wire and material, not including brackets and cross-arms, for the maintenance, repair, and reconstruction of the 'exclusive railroad wires.' The location of any poles, wires, or cables upon the right of way or property of the Railroad should, from time to time, be changed thereon in such manner as the officers of the Railroad might direct so as not to interfere with the operations of the Railroad the Telegraph Co. furnishing the skilled labor, and the Railroad the unskilled labor for such work.

(5) The Railroad should have the right to acquire from the Telegraph Co., or to erect, additional 'exclusive railroad wires' upon the telegraph lines covered by the contract, the Railroad paying the cost of material, not including brackets and cross-arms, and of direction and equipment, etc. The Railroad should not be required to furnish any labor in connection with lines not upon its right of way, and the Telegraph Co. should connect the 'exclusive railroad wires' with additional offices, stations, and buildings of the Railroad in the cities and towns along its route, and also in the cities of New York and Brooklyn, where the Telegraph Co. had facilities therefor, and if the Telegraph Co. should have underground conduits available for reaching the Railroad's offices, stations, and buildings, the Telegraph Co. should furnish the Railroad such connecting wires as it might be able to supply in said conduits upon payment by the Railroad of the entire cost of the wire and of placing the same in the conduits and the pro rata cost of construction or rental and maintenance of the conduits.

(6) The Telegraph Co. should furnish free of cost the use of its main batteries for the efficient operation of all railroad wires and also all instruments, stationery, and other material for commercial business, and should grant to the Railroad for use upon the railroad wires the free use of all telegraphic patents then or thereafter owned or used by the Telegraph Co. or its subordinate companies, for the general telegraph business, except that any payments which the Telegraph Co. might be required to make on account of such free use to any minority interests in subordinate companies should be charged to the Railroad, and the Railroad should furnish all instruments, stationery, and other material for railroad business.

(7) The railroad wires should be used only by the Railroad for its railroad business and should not be used for the transmission of any commercial or public telegraph business for tolls, except that where there was but one wire it might be used jointly by the Telegraph Co. with the Railroad, important railroad messages directing the movement of trains having precedence, until such time as in the judgment of the president of the Railroad such joint use might be detrimental to the business of the Railroad, whereupon the Telegraph Co. should erect an additional wire for commercial business; that in all other cases the railroad wires might be used from time to time by the Telegraph Co. jointly with the Railroad, with the Railroad's assent, when not in use for railroad business; that whenever the railroad wires should become disabled the Railroad should have the right to take and use jointly with the Telegraph Co. any of the working commercial wires for the purpose of moving its trains or transacting other important and urgent railroad business, such use to continue without cost to the Railroad until the repair of the railroad wires had been effected and the circuits restored, but that the through commercial wires or circuits should not be subject to such use by the Railroad except in cases of extreme emergency.

(8) Either party might establish and maintain telegraph stations at such places on said railroads as it might deem necessary; at all telegraph stations of the Railroad it should furnish operators at its own expense; its operators and other employes acting as agents of the Telegraph Co. should receive, transmit, and deliver exclusively for the Telegraph Co. such commercial or public messages as might be offered and should charge the tariff rates of the Telegraph Co. thereon, and should render to the Telegraph Co. exclusively monthly statements of such business and full accounts of all receipts therefrom, and pay all of such receipts to the Telegraph Co., but in the transaction of all such telegraph business said operators and all other employes should be held to be only the agents of the Telegraph Co. and should conform to all rules and regulations of the Telegraph Co. applicable to all telegraph business, whether paid or free, and should not, without the consent of the Telegraph Co., transmit over the lines covered by said contract, any free messages except those therein provided for. Whenever the number of paid and collect messages sent from any railroad office should amount to $3,000 or more in any one year, the Telegraph Co. should thereafter provide an operator for such office so long as said messages amounted to said number, and said operator, acting as the agent of the Railroad, should attend to the telegraph business of the Railroad without charge so long as one operator could attend to the telegraph business of both parties. No employe of the Railroad should while in its service be employed in the transaction of commercial or public telegraph business for any party other than the Telegraph Co., and the Telegraph Co. should have the exclusive right to the occupancy of the Railroad's depots and station houses for commercial or telegraph business as against any other party.

(9) If the Telegraph Co. should elect to establish an office in a station building of the Railroad, the latter should, if convenient, provide office room therein and light and fuel therefor, free of charge, and if at such station one person could attend to the telegraph business of both companies, the operator of the Telegraph Co. at such office, acting as agent for the Railroad, should attend to the telegraph business of the Railroad without charge and conform to the rules of the Railroad applicable thereto. Whenever the telegraph business of both companies at any office where the Telegraph Co. furnished the operator should become so large as to require more than one operator, the Railroad should employ and pay its own operator.

(10) The Telegraph Co. should receive and transmit from said lines along said railroads, and should deliver free of charge the messages of the officers and agents of the Railroad pertaining to its railroad business, between all places then reached by said telegraph lines on said railroads. Such messages should be received at and delivered from any of the offices of the Telegraph Co. or its subordinate companies in any of said places, and, when so received, should be transmitted by the Telegraph Co. over said telegraph lines free of charge. The Telegraph Co. should issue to officers of the Railroad annual franks authorizing the free transmission of messages relating strictly to railroad business of the Railroad originating at and destined to points on the lines then or thereafter owned or operated by the Telegraph Co. or its subordinate companies in the Telegraph Co.'s general telegraph system beyond or off the lines of said railroads to an amount not exceeding $10,000 per annum, calculated at the regular day rates of the Telegraph Co. between the points at which said messages should originate and the points to which they might be destined. The Railroad should pay to the Telegraph Co. one-half of its aforesaid rates on all such messages in excess of said amount, settlements to be made yearly. The free telegraphic service provided for in said contract should apply only to the transmission of messages concerning the operation and business of the Railroad's railroads covered by said contract, and should not be extended to any messages for transmission by cable, nor to messages ordering steamer berths, merchandise, or accommodations for customers of the Railroad, the tolls...