City of Memphis v. St. Louis & S.F.R. Co.

• Decision Date: 17 November 1910
• Docket Number: 1,928.
• Citation: 183 F. 529
• Parties: CITY OF MEMPHIS et al. v. ST. LOUIS & S.F.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

183 F. 529

CITY OF MEMPHIS et al. v. ST. LOUIS & S.F.R. CO.

No. 1,928.

United States Court of Appeals, Sixth Circuit.

November 17, 1910

C. M Bryan, City Atty., and T. K. Riddick (Jas. L. McRee, of counsel), for appellants.

E. E Wright and C. W. Metcalf, for appellee.

Before WARRINGTON and KNAPPEN, Circuit Judges, and SANFORD, District judge.

SANFORD District Judge.

This is a bill filed by the St. Louis & San Francisco Railroad Company, a Missouri corporation, the complainant below against the city of Memphis, a municipal corporation of Tennessee, and George T. O'Haver, its chief of police the defendants below, for the purpose of enjoining the defendants from interfering with the complainant in the construction and use of a lateral track in the city of Memphis.

A restraining order was granted under the bill and later a preliminary injunction. At the final hearing, a decree was rendered in which the court found, in general terms, that there was equity in the bill, and that the complainant was entitled to relief as therein prayed, and therefore ordered, adjudged, and decreed that the defendants be perpetually enjoined and restrained from interfering with the construction or reconstruction of the track in question, and from interfering in any manner with the quiet and peaceable use of such track for railroad purposes, and taxed the costs of the cause against the defendants. The defendants appealed to this court, filing an assignment of errors in substance as follows: (1) That the court erred in holding in its final decree that the complainant was entitled to an injunction and in perpetually enjoining and restraining the defendants from interfering with the construction and use of the complainant's track; (2) that the court erred in granting a preliminary injunction; and (3) that the court erred in adjudging the costs against the defendants.

The appellee as a preliminary matter has moved to dismiss the appeal because of the failure of the appellants to file sufficient assignments of error as prescribed by rule 11 of this court. This rule provides that the appellant shall file with his petition for appeal 'an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged,' and that 'errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.'

We are of the opinion that the motion to dismiss is not well taken. It appears to be true that under the decisions of this court in Deering Harvester Co. v. Kelley, 103 F. 261, 43 C.C.A. 225, The Myrtie M. Ross, 160 F. 19, 87 C.C.A. 175, and Garrett v. Pope Motor Car Co., 168 F. 905, 94 C.C.A. 334, involving the sufficiency of general assignments of error to final decrees and judgments, and other decisions of this court and of the Circuit Courts of Appeals of other circuits therein cited, the assignments of error filed in this case, in so far at least as they relate to the final decree in the court below, are too vague and indefinite to comply with the requirements of rule 11. Whether under the rule stated in Doan v. American Book Co. (7th Circuit) 105 F. 772, 45 C.C.A. 42, the second assignment of error, relating to the granting of the preliminary injunction, is also insufficient, need not now be determined, since we are of the opinion that, even where the assignments of error are insufficient, this does not of itself constitute ground compelling the dismissal of an appeal, as the court may nevertheless, under the proviso contained in rule 11, notice a plain error not assigned. This has been held in two cases involving the effect of a similar rule of the Supreme Court, in which motions to dismiss writs of error and appeals were denied, although no assignments of error had been filed. School District of Ackley v. Hall, 106 U.S. 428, 1 Sup.Ct. 417, 27 L.Ed. 237; United States v. Pena, 175 U.S. 500, 502, 20 Sup.Ct. 165, 44 L.Ed. 251. Hence, where sufficient assignment of errors have not been filed, the real question is whether the court shall determine, in the exercise of its option, to notice a plain error not assigned, or, on the other hand, if no error appears of which the court deems itself warranted in taking notice, the judgment or decree below shall be affirmed for want of sufficient assignment of errors, in accordance with the practice followed in Garrett v. Pope Motor Car Co., supra, and other cases.

We accordingly overrule the motion to dismiss the appeal, and proceed to examine the record for the purpose of determining whether it presents any plain error 'of a controlling character' of which the court would be warranted in taking notice, under the rule laid down by this court in Mast & Co. v. Drill Co., 154 F. 45, 51, 83 C.C.A. 157.

The material facts essential to a determination of the legal questions involved are substantially these:

The complainant, the St. Louis & San Francisco Railroad Company, hereinafter designated as the Railroad Company, is a railroad corporation, organized under the laws of the state of Missouri, and engaged in operating an interstate railroad line about 4,000 miles in length. For many years it has operated about 12 miles of this line within the state of Tennessee. This portion of its line enters the city of Memphis from the west over a bridge across the Mississippi river, and extends in a southeasterly direction through the city, across the southwestern corner of the state of Tennessee, into the state of Mississippi. It has also had for some years another track, known as the incline track, which branches off from this main line a short distance east of the end of the bridge, and extends southwestwardly on an incline to the river bank at a point where the Railroad Company used a ferry boat for crossing the river before the bridge was built.

How the Railroad Company acquired the right to construct and operate these lines in Tennessee does not appear. It is neither alleged nor proven that it has ever complied with the provisions of the Tennessee statutes prescribing the terms and conditions upon which a corporation organized under the laws of another state may carry on in Tennessee the business authorized by its charter (Shannon's Tenn. Code, Sec. 2545 et seq.), nor that it built any portion of these tracks under the provisions of the Tennessee statute authorizing any railroad company created by the laws of any other state to extend its railroad into Tennessee a distance of not exceeding five miles for the purpose of reaching a terminal point or a general or union depot (Tenn. Acts of 1887, c. 160, Sec. 1; Shannon's Code, Sec. 1874); nor is it either alleged or proven that under its charter it is or was authorized or empowered to construct or operate either its original lines of track in Tennessee, or the additional track now in dispute.

In the year 1907 the complainant Railroad Company (together with another railroad company which is not a party to this suit and whose participation in the matters to be hereinafter referred to, being immaterial to the present issues, will be disregarded in the statement of the facts) entered into negotiations with an industrial corporation, styled the Gulf Compress Company, looking to the establishment by the latter company of a warehouse and cotton compress plant in the city of Memphis, and an extension of the Railroad Company's tracks to reach such plant. It was finally determined to locate this plant upon a tract of land of about 40 acres in the southwest corner of the city, lying upon the east bank of the river, about 3/4 of a mile south of the above-mentioned incline track, and extending on the east to Riverside Boulevard, a city street which is also known as Livermore avenue, and which will be hereinafter designated by that name. One of the reasons for selecting this tract of land was that the Compress Company expected to be able by constructing a lift to the bank of the river to obtain also the benefit of river transportation for cotton.

Surveys were made to determine a route for reaching this plant with the railroad tracks. And, while it was possible to reach this plant by a line wholly outside the city, this was deemed impracticable on account of the large cost of the rights of way, and a route was finally selected for the Railroad Company's track, commencing at a point on the incline track above mentioned, west of its connection with the main line, and extending in a southwesterly direction to the eastern boundary of the tract of land on which it was proposed to erect the compress plant. The proposed line of this railroad track was altogether about 2,000 feet in length, and extended through a sparsely settled portion of the city, consisting mainly of unused fields, and crossing two comparatively deep ravines. It crossed several streets of the city, only one of which, however, had been ever opened and used, and this one had never been graded or paved.

As a result of these negotiations the Compress Company and the Railroad Company in May, 1907, entered into a contract by which the Compress Company agreed to acquire the tract of land above mentioned, to erect and maintain thereon warehouses and compress plants for the storage, handling and compressing of cotton, and also to construct on said property sufficient spur tracks extending to the eastern boundary of its property at the western line of Livermore avenue, over which the Railroad Company should have the right to operate its cars for delivering, transporting, and handling cotton covered by the agreement. And on its part the Railroad Company agreed to designate and use the warehouses of the Compress Company, subject to certain exceptions not here material, as its exclusive public station and warehouse for cotton,...