Ford Motor Company v. Bisanz Bros., Inc.
| Decision Date | 13 November 1957 |
| Docket Number | No. 15814.,15814. |
| Citation | 249 F.2d 22 |
| Parties | FORD MOTOR COMPANY, Appellant, v. BISANZ BROS., Inc., a corporation, Bisanz Bros. Construction Company, a corporation, and Advance Construction Company, a corporation, on behalf of themselves and other property owners similarly situated, Appellees, and The Chicago-Milwaukee-St. Paul and Pacific Railroad Co., a corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
M. J. Doherty, St. Paul, Minn. (R. J. Leonard and Doherty, Rumble & Butler, St. Paul, Minn., on the brief), for appellant.
E. W. Murnane and Murnane & Murnane, St. Paul, Minn., filed brief for appellees Bisanz Bros., Inc., Bisanz Bros. Const. Co. and Advance Const. Co., on behalf of themselves and other property owners similarly situated.
Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.
This is an appeal by the Ford Motor Company from an order of May 2, 1957, denying its application to intervene in a class action brought by Bisanz Bros., Inc., Bisanz Bros. Construction Company, and Advance Construction Company, upon their own behalf and that of other residential-property owners similarly situated, against The Chicago, Milwaukee, St. Paul and Pacific Railroad Co., to enjoin the maintenance and operation by it of certain of its railroad trackage, used for the temporary storage of freight cars, in the vicinity of the large automobile assembly plant of the Ford Motor Company in the westerly outskirts of the city of St. Paul, Minnesota. The action was brought in the State District Court of Ramsey County, Minnesota, and was removed to the United States District Court for the District of Minnesota on the ground of diversity of citizenship and amount in controversy.
It appears, without dispute, that the Railroad since 1923 has owned and operated a branch line from downtown St. Paul to the Ford assembly plant located on South Mississippi River Boulevard. In addition to the branch main track, the Railroad has owned and operated three additional tracks between West Seventh Street and Cleveland Avenue in the City, located near the property and tracks of the Ford Motor Company's assembly plant. These three tracks, together with a stub track ending at Cleveland Avenue, have been used for the storage of freight cars in connection with receiving and delivering carload shipments of freight to, and taking empty railroad cars from, the Ford plant. This trackage is known as the Davern Avenue storage and team tracks, and has been in use since 1923.
The claim of the plaintiffs is, in brief, that the ordinance of the City of St. Paul and the statutes of the State of Minnesota which authorized the Railroad to own and operate a spur track from downtown St. Paul to the Ford plant, did not authorize it to maintain a storage yard for freight cars in the vicinity of the plant; that it has been operating such a storage yard in an area zoned as Class "A" Residential Area under an ordinance passed by the City Council in August 1922; that that ordinance forbids the use of the area as a storage yard; and that the maintenance and operation of the yard by the Railroad constitutes a continuing private nuisance as to the plaintiffs and other property owners abutting upon or in the vicinity of the storage yard, which they are entitled to have enjoined.
The Railroad in its answer alleged that the storage and team tracks in suit were constructed and operated under authority of the State of Minnesota and an ordinance of the City of St. Paul enacted March 24, 1923, entitled:
"An ordinance granting to the Chicago, Milwaukee & St. Paul Railway Company, its successors and assigns, authority and permission to construct and thereafter maintain and operate for all usual railway uses and purposes a line of railway of one or more tracks, and a spur track leading therefrom, upon, over, along and across various streets, avenues, highways, boulevards and other public grounds in the City of St. Paul * * *."
The Railroad specifically denied that its maintenance or use of the storage facilities is an actionable private nuisance or is in violation of the ordinance granting it authority to maintain and operate the trackage or of the zoning ordinance referred to by the plaintiffs. The Railroad asserted that the trackage was constructed and has been operated for public purposes for the convenience and necessity of shippers, and that the Interstate Commerce Commission and the Minnesota Railroad and Warehouse Commission, "or either of them," have exclusive jurisdiction over the discontinuance and abandonment of such trackage. The Railroad asserted that if the relief demanded by plaintiffs were granted, it would cause irreparable damage to the Railroad and to shippers affected, and would constitute an unlawful and unreasonable burden on interstate commerce. The Railroad also asserted that if the operation of the trackage is an actionable nuisance the plaintiffs have an adequate remedy at law, and that laches has barred their asserted claim.
A motion of the plaintiffs for a temporary injunction was denied by the District Court. Thereafter the Ford Motor Company filed its application for leave to intervene as a defendant, together with its proposed answer (complaint in intervention) to the complaint. In its motion for leave to intervene it asserted:
In its proposed answer, the Ford Motor Company adopted the denials and allegations of the Railroad's answer. The Company alleged that since 1924 it has owned and operated the large automobile assembly plant referred to in the pleadings; that it produces more than 400 automobiles per day at the plant; that substantially all of the parts and supplies for this production are received by rail from points outside of Minnesota at the rate of about 40 carloads per day for seven days each week; that the defendant Railroad is the terminal carrier of such carloads; that the operation at the plant is such that storage tracks capable of accommodating a large number of loaded and empty cars in reasonable proximity to the plant is an imperative necessity; that increasing production has caused and will continue to cause an increase in the number of carloads, parts and supplies required at the plant, with a corresponding increase in the extent of its need for storage trackage; that ever since the plant went into operation, such need has been met by the trackage of the defendant Railroad, the use of which the plaintiffs seeks to enjoin; that the trackage now available constitutes the minimum of storage trackage essential to the present manner and level of operation of the plant; that a discontinuance or curtailment of the present storage track service will result in costly stoppages of operation, great loss to the Company, and hardship to the approximately 2,000 employees at the plant, whose wages aggregate about $13,000,000 annually, and will reduce local purchasing needs of the Company now reflected in Twin City purchases of about $2,250,000 per annum; that in the maintenance of the storage tracks in suit the Railroad is acting as a common carrier in interstate commerce, and may discontinue such storage track service only by order of the Interstate Commerce Commission, or, if not subject to the exclusive control of the Commission, then by order of the Minnesota Railroad and Warehouse Commission, made after hearing upon notice to the Ford Motor Company and other shippers affected; that plaintiffs' claim is barred by laches; and that, if such a claim exists, the plaintiffs have an adequate remedy at law.
In connection with its application, the Ford Motor Company filed affidavits in substantiation and amplification of the allegations of the proposed answer and in support of the application for leave to intervene.
Counsel for plaintiffs filed an affidavit in opposition to the application. The order of the District Court from which this appeal is taken, sufficiently discloses the grounds of the plaintiffs' opposition and the basis of the court's order denying leave to intervene.1
Rule 24 of the Federal Rules of Civil Procedure, 28 U.S.C.A., relating to intervention, so far as pertinent reads as follows:
It is apparent that the District Court concluded that there was an insufficient showing that the interests of the Ford Motor Company would be inadequately represented by the Railroad. The contention of the Company is that it was entitled to leave to intervene both under Rule 24(a) (2) and Rule 24(b) (2) — under Rule 24(a) (2) because its interest in the controversy would not be represented, or would or might be inadequately represented, by the Railroad, and that the Company would be "bound" by a judgment adverse to the Railroad within the meaning of the word "bound" as used in the Rule; and that the Company qualified for permissive intervention under Rule 24(b) (2) and that the denial of leave constituted an abuse of the court's discretion.
The plaintiffs contend that the Company did not show that it would be inadequately represented...
To continue reading
Request your trial
-
Cascade Natural Gas Corporation v. El Paso Natural Gas Co People of State of California v. El Paso Natural Gas Co Southern California Edison Co v. El Paso Natural Gas Co, s. 4
...United States v. American Society of Composers, Authors, and Publishers, 202 F.Supp. 340 (D.C.S.D.N.Y.). But cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (C.A.8th Cir.). 25 United States v. General Electric Co., 95 F.Supp. 165, 169 (D.C.N.J.). 26 This policy has been given continuing rec......
-
New Orleans Terminal Company v. Spencer, Civ. A. No. 9125-B.
...is patent that sufficient supporting authority for the ruling is found in the only case briefed by intervenor, Ford Motor Co. v. Bisanz Bros., Inc., 249 F.2d 22 (8 Cir. 1957). Opposition briefs were concerned only with the merits of the intervening petition and not with any legal or equitab......
-
In re Union Leader Corporation, 5820 (Original)
...315, or more loosely, and perhaps more practically, that a writ should issue "in the interest of justice," Ford Motor Co. v. Bisanz Bros., Inc., 8 Cir., 1957, 249 F.2d 22, 26; cf. United States v. Beatty, 1914, 232 U.S. 463, 467, 34 S.Ct. 392, 58 L.Ed. 686 ("furthering justice"), our power ......
-
Atlantis Development Corporation v. United States
...parties." 9 Sam Fox Publishing Co. v. United States, 1961, 366 U.S. 683, 81 S.Ct. 1309, 6 L. Ed.2d 604. 10 Ford Motor Co. v. Bisanz Bros., Inc., 8 Cir., 1957, 249 F.2d 22; Kozak v. Wells, 8 Cir., 1960, 278 F.2d 104, 84 A.L.R. 2d 1400; Atlantic Ref. Co. v. Standard Oil Co., 1962, 113 U.S.App......
-
28 APPENDIX U.S.C. § 24 Intervention
...Co., both supra; Wolpe v. Poretsky, 144 F.2d 505 (D.C.Cir. 1944), cert. denied, 323 U.S. 777 (1944); cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir. 1957); and generally, Annot., 84 A.L.R.2d 1412 (1961).An intervention of right under the amended rule may be subject to appropriate ......