National Refining Co. v. St. Louis. I. M. & S. Ry. Co.

• Decision Date: 17 November 1916
• Docket Number: 2834.
• Citation: 237 F. 347
• Parties: NATIONAL REFINING CO. v. ST. LOUIS, I.M. & S. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

237 F. 347

NATIONAL REFINING CO. v. ST. LOUIS, I.M. & S. RY. CO.

No. 2834.

United States Court of Appeals, Sixth Circuit.

November 17, 1916

C. D Chamberlin and Tolles, Hogsett, Ginn & Morley, all of Cleveland, Ohio, for plaintiff in error.

Edward J. White, Henry G. Herbel, and Fred G. Wright, all of St Louis, Mo., for defendant in error.

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

PER CURIAM.

The railway company brought an action, comprising two counts against the refining company in the court below to recover demurrage charges alleged to have accrued on certain interstate shipments made by defendant in its own cars over plaintiff's railroad to defendant's distributing plant at Little Rock, Ark. The cause was submitted and determined below upon the pleadings and an agreed statement of facts. The charges were assessed because of alleged undue detention of the cars by defendant on a certain spur track. This track had been constructed from plaintiff's railroad right of way and into defendant's premises under a deed of grant from defendant to plaintiff and in pursuance of a written agreement between them. The right of the railway company to recover these demurrage charges must, in view of its demurrage rules, depend upon whether the spur track was the property of the railroad and the cars were 'in railroad service.' ^[1] The court below determined these questions in favor of the railway company, and entered judgment accordingly. The writ of error is prosecuted to reverse this judgment.

Upon careful consideration of the pleadings and agreed statement of facts, which set out the deed and the written agreement before referred to, we are satisfied that the conclusions, both of fact and law, reached by the learned trial judge and expressed in his opinion (226 F. 357, 358) are correct. According to both the deed and agreement, the ownership of the spur track is in express terms vested in the railway company. We need not attempt to add to what is said in the opinion below touching the rights of the company in the spur track, unless it be to point out that the written agreement of the parties distinctly provided that the refining company should convey to the railroad company 'by easement all the land necessary for the construction of the track * * *, the said land to be furnished free of cost to the railway company and to be of such width and quantity as may be required by the engineer of the railway company, title to same to be free and unincumbered'; and the deed, entitled 'Grant of Easement,' appears to have been made in pursuance of the foregoing provision of the agreement. The deed distinctly grants to the railway company 'the right and permission to construct, maintain and operate their spur track over and across the property' of the refining company (such property being described), 'together with the right to enter upon said property at all times for the purpose of constructing, operating, maintaining, repairing, changing or removing said track, it being expressly understood and agreed that the ownership of the said track, including rails, fastenings and switch fixtures, now or hereafter therein, shall at all times be and remain in' the railway company. The right of way was laid out and graded, and the spur track was constructed and put into use and operation for shipment purposes in connection with the main track of the railroad; and while certain details of construction, advancing of money therefor, and the like, are made use of in argument, we do not think these details were intended to change, or had the effect of changing, the obvious purpose as originally expressed to vest the spur track in the railway company as its property. It results that the shipments in question in the first count fall within the demurrage rule first quoted (note 1, supra), and not within the exception thereto; for while the cars containing the shipments were private cars of the defendant and used for the transportation of a commodity produced by it, within the meaning of the exception, they were on a track owned by plaintiff, not by defendant, at the time for which the demurrage charges were assessed.

Furthermore the portion of the opinion below which treats of the question whether the cars involved in the second count were 'in railroad service' may be more readily applied when it is read in connection with the demurrage rule and the note thereto secondly quoted herein (note 1, supra). The expression 'in railroad service' is broad and comprehensive, and must be construed with reference to the object to be attained. The object would seem to extend to all cars to which the carrier may resort for the purpose of discharging its duty to supply cars necessary to accommodate the traffic passing over its road. The language of the demurrage rule, considered as an entirety, distinctly includes private cars; and unless the carrier has some means of regulating the loading and unloading of available cars, regardless of their ownership, the clear purpose of the demurrage rule is defeated. Hence, when a shipper chooses to supply cars for the carriage of freight, even though of a commodity produced by the shipper, this must be done with reasonable reference to the spirit and intent of the demurrage rule. It would seem to...