Lake Shore & M.S.R. Co. v. Felton

• Decision Date: 15 June 1900
• Docket Number: 766.
• Parties: LAKE SHORE & M.S. RY. CO. et al v. FELTON.
• Court: U.S. Court of Appeals — Sixth Circuit

103 F. 227

LAKE SHORE & M.S. RY. CO. et al v. FELTON.

No. 766.

United States Court of Appeals, Sixth Circuit.

June 15, 1900

On the 7th day of July, 1899, there was pending in the circuit court for the Southern district of Ohio, in the Eastern division thereof, a suit in equity, wherein the Metropolitan Trust Company was complainant, and the Columbus, Sandusky & Hocking Railroad Company was defendant, of which latter company Samuel M. Felton had prior to the above-mentioned date been appointed receiver, and was at the said date acting as such. On the day above mentioned the said Felton, as receiver filed an intervening petition in that suit against the Lake Shore & Michigan Southern Railway Company and the Cleveland Cincinnati, Chicago & St. Louis Railway Company, the grounds and objects of which are shown by a copy of the said petition, here set forth (omitting title of the court and cause):

'To the Judges of the Circuit Court of the United States for the Southern District of Ohio, Eastern Division: Your petitioner S. M. Felton, receiver, shows to the court: Among the property in his possession as such receiver by virtue of his appointment by this court in this case on June 1, 1897, is the railroad track on Railroad street, in the city of Sandusky, Ohio, which extends from the easterly to the westerly ends of said street, the undivided half interest in which your petitioner acquired by deed executed to him by the Baltimore & Ohio Railroad Company, and the receivers of said company, pursuant to the order of this court in that behalf entered in the case of the Mercantile Trust Co. v Baltimore & Ohio Railroad Company (No. 757) on April 22, 1898. That said Lake Shore & Michigan Southern Railway Company and said Cleveland Cincinnati, Chicago & St. Louis Railway Company, without any lawful right, and notwithstanding your petitioner's repeated protests to them, now are, and for some time past have been, using said track, running their engines and cars thereon and thereover. That said companies get access to said track with their engines and cars over a connection therewith which it is necessary for your petitioner to use, so that your petitioner cannot forcibly prevent their said unlawful use of said track without danger to life and property. Your petitioner therefore prays that said companies be required to show cause why they should not be committed for contempt for entering upon and using said property and operating their engines and cars thereover, and that meantime they may be enjoined therefrom, and that your petitioner may have such order and relief as may be proper.

S. M. Felton.

'State of Ohio, Hamilton County-- ss.: S. M. Felton, being first duly sworn, says that he believes the allegations of his foregoing petition to be true. Sworn to before me, and subscribed in my presence, this 5th day of July, 1899.

'(Seal.)

S. E. Hibbard, Notary Public, 'Hamilton County, Ohio.'

The respondents therein mentioned were not parties to the original suit, but they appeared and answered the petition. Their answers were separate, but were identical. A copy thereof (omitting title of the court and cause, except the name of the answering company in the several answers) is as follows:

'The Lake Shore & Michigan Southern Railway Company, for answer to the petition of S. M. Felton, receiver herein, admits the acquirement by said receiver of an undivided one-half interest in the track named in the petition, as averred therein, and that it has been, and still is, using said track. But this defendant avers that it is making such use under and by virtue of an agreement made by it with the Baltimore & Ohio Railroad Company before such acquisition by said receiver of an interest therein, and while said Baltimore & Ohio Railroad Company was the sold owner thereof, with full power to make such agreement. By said agreement said Baltimore & Ohio Railroad Company pays to this defendant $600 per annum for the use of this defendant's track in Railroad street, in the city of Sandusky, Ohio, parallel with the track in the petition described; and this defendant pays to said Baltimore & Ohio Railroad Company fifty cents per car, loaded or empty, for all of its cars which use said track in the petition described, one-half of which trackage charge this defendant is advised and believes, and so avers, said Baltimore & Ohio Railroad Company has paid to said receiver since his acquirement of an interest in the track in the petition described. This defendant denies that its use of said track is improper or unlawful, and prays that its interests may be protected.'

This answer was sworn to by one of the solicitors for the defendant. The jurat states that he says that he 'is the attorney of the above-named defendant, and that all and singular the statements of the foregoing answer are true, as he verily believes.'

Subsequently, the court deeming it necessary that the Baltimore & Ohio Railroad Company should be made a party to the proceeding, leave to the receiver was given for that purpose. The last-named company appeared, and adopted the answer which the other two companies had filed. Replication to these answers was duly filed. Thereupon a motion for a preliminary injunction, based upon the showing made by the pleadings, was brought on for hearing. The court, being of opinion that sufficient ground for an injunction was shown, granted an order whereby the defendants were enjoined from entering upon or using said track unless certain privileges on their own tracks should be accorded by the defendants to the petitioner. For the present purpose, it is not necessary to state the privileges mentioned in the proviso, as they are not material to the decision. From this order the several defendants to the intervening petition have appealed, and they assign the following grounds for error: 'First, because, upon the fact of the intervening petition of S. M. Felton, receiver, filed herein against this defendant, it appeared that the said S. M. Felton was not entitled to relief by injunction; second, because, upon the face of the said record and proceedings, it appeared that S. M. Felton was not entitled to relief by injunction, preliminary or final; third, because no case was made upon the same record or proceedings for a preliminary injunction.'

Harmon, Colston, Goldsmith & Hoadly, for appellants.

Lawrence Maxwell, Jr., for appellee.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge, after having stated the case, .

In the brief and argument for the appellants it is urged that...