Bryan v. Louisville & N.R. Co.

• Decision Date: 12 April 1917
• Docket Number: 4801.
• Citation: 244 F. 650
• Parties: BRYAN v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

244 F. 650

BRYAN v. LOUISVILLE & N.R. CO.

No. 4801.

United States Court of Appeals, Eighth Circuit.

April 12, 1917

Rehearing Denied October 22, 1917. [Copyrighted Material Omitted]

S Mayner Wallace and Shepard Barclay, both of St. Louis, Mo for plaintiff in error.

Edward S. Jouett, of Louisville, Ky., and Harold R. Small, of St. Louis, Mo., for defendant in error.

Before CARLAND and STONE, Circuit Judges, and MUNGER, District Judge.

CARLAND Circuit Judge.

The parties to this action will be named as in the trial court. The plaintiff sued the defendant to recover damages which he alleged resulted from the abandonment by defendant of its main line of road from New Castle to Bangor, Blount county, Ala. At the trial of the case counsel for defendant moved the court to direct a verdict in its favor. The motion was granted, and the plaintiff has brought the case here assigning error. The plaintiff stated his causes of action in two counts.

The first count, after alleging the purchase of about 2,600 acres of land in Blount county, Ala, in the immediate vicinity of Reid's station, on the line of the South & North Alabama Railroad Company, hereafter called 'South & North,' and the cultivation and growth of commercial peach and apple orchards thereon, the purchase from said railroad company of its line of railroad by the Louisville & Nashville Railroad Company, hereafter called the 'Louisville & Nashville,' and the assumption by the latter of all the duties and obligations which could be required of the South & North as a common carrier, further alleged as follows:

'Plaintiff further states that at and before his purchase of said land, and during the development thereof, as stated, defendant contracted and agreed with plaintiff, in consideration of plaintiff's making and developing said investment and furnishing to defendant the tonnage therefrom, that, for as long a time as plaintiff produced said tonnage, said defendant would maintain and operate said line of railroad through and along his said land, in substantially the same way as was then being maintained and operated, and furnished to plaintiff the fast-freight and express service thereon for the products of said orchards to the markets of the United States and adequate transportation service for all the tonnage produced on said lands; but that on or about November 16, 1914, said defendant, wholly disregarding its said obligation to plaintiff, and in violation of its said contract and assurances, and notwithstanding that plaintiff had at all times offered, and was then continuing to offer, to defendant a large, and the full amount of said tonnage, discontinued and ceased operating that part of the said line of railroad through and along plaintiff's said property, at said Reid's station, and denied and still denies to plaintiff said fast-freight and express service for the products of said orchards, and all railroad facilities for all tonnage produced and to be produced on said land, and has since removed part of the roadbed of said line of railroad along plaintiff's said property and north of said Reid's station, and on account of the mountainous condition of said county and the topography thereof, and the peculiar location of plaintiff's said land, and because of the fact that there is no other accessible line of railroad therein, or means whereby any of the tonnage produced on said land may be carried away therefrom, has closed thereby all of said markets to the products of plaintiff's said orchards, and thereby destroyed the said value thereof.'

The second count of the complaint, after making the allegations of the first count a part thereof by reference, alleged that plaintiff's injury was special in kind and different and greater in degree than that, if any, suffered by the public, and that under general law, as well as under the laws of Alabama, plaintiff might not be so injured and damaged by defendant without just compensation being made.

We have carefully read and considered the evidence in the record, and are satisfied that there was sufficient evidence to take the case to the jury upon the question of damages, and, upon the assumption that defendant was bound to furnish the plaintiff with adequate shipping facilities as alleged in his complaint, the question whether such facilities were furnished or offered by defendant to plaintiff during the season of 1915, and prior to the abandonment of the orchards by plaintiff on December 2, 1915, was, upon the evidence before us, clearly a question for the jury. We are also satisfied that taking the evidence upon the question of whether the defendant, either expressly or impliedly, agreed with plaintiff, by correspondence and mutual business relations, to maintain and operate its line of railroad through and along his said land, in substantially the same way as the same was then being maintained and operated, and to furnish plaintiff the shipping facilities stated in the complaint, with all legitimate inferences which the jury might rightfully draw therefrom, there was not sufficient evidence to take the case to the jury upon that question. The most that can be said upon this phase of the case is that the defendant, prior to the abandonment of its line of road, was desirous that the plaintiff should make a success of his business of fruit raising, as tonnage for the road would be produced thereby. The building of the spur track to connect with the tramway of plaintiff, and the sending of an agent to supervise the shipping of fruit during the shipping season, were both consistent with this desire and purpose.

It is claimed, however, that under the facts stated in the complaint, the defendant had no legal power or authority to abandon its main line, which passed near the orchards of the plaintiff, and relocate the same as hereinafter stated, and that, such abandonment and relocation being illegal, the defendant is liable for any damage resulting therefrom to the plaintiff. This is the important question in the case. The facts bearing upon the question are as follows:

The South & North was incorporated by a special act of the General Assembly of Alabama, February 17, 1854. The railroad constructed by it extended from Decatur, Ala., through Birmingham, to Montgomery, Ala., a distance of about 182 miles. Speaking without reference to entire accuracy, the line of this railroad from New Castle, Ala., to Bangor, Ala., at the time of its abandonment, November 16, 1914, had been constructed and operated for about 40 years. From 1872 to January 21, 1914, the road was controlled and operated by the defendant, the latter from 1900 owning all the preferred and 80 per cent. of the common stock. This condition of affairs arose from the fact that the Louisville & Nashville furnished the money to build the road. On January 21, 1914, the South & North, for certain valuable considerations mentioned in the deed of conveyance, conveyed all its interests in its line of railroad to the defendant, the latter assuming 'all the duties and obligations which could or can be lawfully required of the parties of the first part as a common carrier, * * * and the assumption of all other indebtedness of the party of the first part owing by contract with any person, firm, or corporation or on account of injury to persons or damage to property and all indebtedness of any other character whatsoever. ' On November 16, 1914, the defendant discontinued the operation of the old line of the South & North from New Castle to Bangor, and commenced to operate the new double-track line between the points mentioned, which had been built and constructed during the previous two years. The distance between the points mentioned over the new line is about 20 miles, being about 2 miles shorter than the distance between the same points over the old lines. The new line is distant from Reid's station on the old line 4.9 miles. The average distance of the new line from the old line between the points mentioned is about 3 miles. The intervening space between the two lines is rough and mountainous, to such an extent as to be inaccessible by ordinary conveyance.

The new line departs entirely from the old line between the points mentioned. The considerations which led to the construction of the new line were to straighten the line of road, reduce curvature, and obtain lower grades, in order to facilitate the movement of business, reduce delays, and improve safety, and greatly increase the capacity of the road for handling business. The plaintiff when on the stand was asked the following question: 'You admit, do you not, that the building of that double track through there on that straighter, shorter line is a matter of material interest and advantage to the general public, both in the matter of safety and expedition of service, freight and passengers? ' The witness answered, 'I do.'

The plaintiff, relying upon the continuance of the shipping facilities furnished by the South & North as operated by the Louisville & Nashville, had, during the period of about 11 years prior to November 16, 1914, cultivated and grown on the land purchased by him, as before stated, commercial peach and apple orchards, known as the 'Mont Eyrie Orchards.' A portion of the orchards were located on land through which the original right of way of the South & North had been granted, a part of the consideration for such right of way being that the South & North would build a railroad on and along said lands.

Plaintiff alleges that the abandonment of the old line of road destroyed the value of these orchards; hence this suit. In the treatment of the question as to the authority of the Louisville & Nashville to abandon the old line and relocate the same as appears in the evidence, we put...