Chattanooga Terminal Ry. Co. v. Felton
| Decision Date | 20 August 1895 |
| Citation | 69 F. 273 |
| Parties | CHATTANOOGA TERMINAL RY. CO. v. FELTON. |
| Court | U.S. District Court — Eastern District of Tennessee |
Brown & Spurlock, Young & Coleman, and Thomas, Elder & Thomas, for petitioner.
Shepherd & Frierson, for defendant.
The questions now to be disposed of arise upon the petition filed by the Chattanooga Terminal Railway Company, a corporation organized under the laws of Tennessee, and hereinafter, for convenience, called the 'Terminal Company,' in the above-named case. The Cincinnati, New Orleans & Texas Pacific Railway Company is a corporation organized under the laws of the state of Ohio, and hereinafter called the 'Cincinnati Southern Road.' This company was organized for that purpose, and is operating the lines of railroad originally constructed and now owned by the trustees of the Cincinnati Southern Railway, under a lease from that company, and among parts of that railway material to be noticed is what is called its 'River Track,' extending along the west side of the city of Chattanooga, and up the general course of the Tennessee river, northwardly along that section mostly occupied by manufacturing and other business establishments. It will be called herein the 'River Track.' Another company connected with the facts of this transaction, and necessary to be referred to, is what is called the 'Chattanooga Belt Railway,' a company which it is claimed was recently formed for the purpose of taking the property formerly owned by the Union Railroad and the Chattanooga Union Railway Company, recently sold under decree of this court. This company was organized under the laws of Tennessee, and will be called the 'Belt Road.' The Terminal company owns and operates a line of railway running practically parallel with the river track aforesaid, from Boyce street to and beyond Ash street northwardly. On the night of August 3, 1895, a construction train came into the city of Chattanooga from and over said Cincinnati Southern road with about 20 flat cars, loaded with material suitable for the work hereinafter mentioned, and with a crew of about 100 men, and entered upon the right of way of the Terminal company just after midnight, and began the work of putting in certain cross-over or switch tracks from said river track of the Cincinnati Southern road, and tearing up, for that purpose, the tracks of the Terminal company. Three of these switch-over tracks were for the purpose of reaching the Plow Works, the Ross-Meeham Brake-Shoe Foundry, and the Malleable Iron Works manufacturing establishments situated on the line of the Terminal company, and the business of which was already being handled by the Terminal company. The cross-over or switch tracks do not run at right angles to the Terminal company's line, but in such diagonal direction as that they appropriate almost longitudinally the right of way of the Terminal company, so far as may be necessary to reach said factories; and, in fact, the method of construction, as appears on the map made, they actually appropriate and use the track of the Terminal company for some distance. These switches are put in for the sole purpose of reaching the industrial establishments aforesaid, and do not reach any new or different place from those already served by the Terminal company, and do not penetrate any new territory. The only purpose is to reach and handle the business of these three establishments already transacted by the Terminal company. Then, at the crossing of Ash street, a line was put in upon the right of way of the Terminal company longitudinally, for the purpose, as the defendants insist, of connecting the river track with what they claim is an old track of the Chattanooga Union Railway Company, running northwardly from that point. It may be stated, in this connection, as well as elsewhere, that the defendants do not claim that either the Cincinnati Southern road or the Belt road had any right or title to the property on which these cross-over tracks are placed, but assert a right of way to so much of the ground as is occupied by the track put in at Ash street. This claim, I think, is so entirely without foundation, from anything disclosed in the record, that it can be easily stated that neither the Belt road nor Cincinnati Southern road had title to the land occupied by any of these tracks put in during the night and Sunday following, as before stated. The position now taken by the defendants is, that, although they had no title to the property, having entered upon the same, and taken and appropriated the same for public use, and being in the possession thereof (although by violence and unlawfully) still, inasmuch as they have the right, by regular condemnation proceedings, in accordance with law, to take this property for public use, this court should not disturb their possession, or the use of the property, but should leave the Terminal company to its remedy at law in an action for damages for the property so taken; or that this court should, in some method, simply require compensation to be made, and this is the limit of relief which it can grant. The Belt road, as before stated, was recently formed for the purpose, as said in argument, of taking the property of the Chattanooga Union Railway Company. It has obtained no title thus far to that property; and the defendant's able counsel frankly concedes that it has no property now at all subject to execution at law, but maintains that, under a plan of reorganization agreed upon, it will soon become the owner of the property sold, as before stated. It is not controverted that a party holding a judgment and execution against that company would have to resort to further litigation for the satisfaction of the same. The Cincinnati Southern road is insolvent, and now in the hands of a receiver, appointed in the above cause, under an ancillary bill filed in this court, the original bill for that purpose having been filed in the United States court at Cincinnati, And Felton appointed receiver by Judge Taft in that court, and also under the ancillary bill in this.
The construction train and crew of men before mentioned came to the place of operations under the control of R. Carroll, the general manager of the road, under Mr. Felton's control, as receiver, and A. Griggs, division superintendent of that part of the line extending from Somerset, Ky., to Chattanooga; and with them was Mr. Nicholson, the engineer of the same road under Mr. Felton. After this train had entered the city, it was assisted, to a limited extent, by the officials of the Belt road, although it sufficiently appears that the officials of that road were not advised of the plan of operations until August 3d, and after the plans had been determined upon between Felton and his general manager, Carroll. Certain telegraphic correspondence took place between Felton and his manager, Carroll, too lengthy to be embraced in this opinion in full, but parts of the same are set out as follows:
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