Pittsburg, C., C. & St. L. Ry. Co. v. Dodd

• Citation: 115 Ky. 176,72 S.W. 822
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. et al. v. DODD et al.
• Decision Date: 19 March 1903
• Court: Kentucky Court of Appeals

72 S.W. 822

115 Ky. 176

PITTSBURG, C., C. & ST. L. RY. CO. et al. v. DODD et al.

Court of Appeals of Kentucky.

March 19, 1903

Appeal from Circuit Court, Jefferson County, Chancery Division.

"To be officially reported."

Action by John L. Dodd and others against the Pittsburg, Cincinnati Chicago & St. Louis Railway Company and others. From a judgment for plaintiffs for a part of their demand defendants appeal, and plaintiffs bring a cross-appeal. Affirmed on cross-appeal, and reversed on defendants' appeal.

Lawrence Maxwell, for P., C., C. & St. L. Ry. Co. Helm, Bruce & Helm for appellant L. & N. R. Co. J. C. Dodd, Harris & Marshall, Kohn, Baird & Spindle, and Hazelrigg & Chenault, for appellees.

O'REAR J.

The Louisville Bridge Company was incorporated by an act of the Legislature in 1856, with authority to build a railroad toll bridge cross the Ohio river at Louisville. The bridge was not built and completed till about 1870. The charter of the bridge company authorized it "to contract, at an agreed sum or rate, with any railroad company chartered by the state of Kentucky, or any other state of the United States, for the annual use of said bridge by the cars or for the purposes of said railroad company."

This bridge was built from stock subscriptions and the proceeds of an issue of mortgage bonds. The capital stock paid in was $1,500,000. The bond issue was $800,000. When this bridge was built there was no other railroad bridge across the Ohio river below Cincinnati. Then the only railroad connecting with it from the south was appellant Louisville & Nashville Railroad. The only railroads connecting from the north were the Jeffersonville, Madison & Indianapolis Railroad and the Ohio & Mississippi Railway (the latter by way of using the approach owned by the former). The bridge was constructed exclusively for railroad traffic. The bridge company owned no rolling stock, and has never owned or operated any.

On June 5, 1872, the Louisville Bridge Company (hereinafter referred to as the "Bridge Company"), the Jeffersonville, Madison & Indianapolis Railroad Company, the Ohio & Mississippi Railway Company, and the Louisville & Nashville Railroad Company entered into a contract--perpetual, except as it might be terminated by the parties according to its terms--by which the railroad companies agreed to pass over the bridge their traffic destined to cross the Ohio river at or near Louisville, and to pay for this privilege such rates per engine, per car, per ton, and per passenger as the bridge company might from time to time fix, not exceeding in the aggregate a sum sufficient to pay a certain fixed income to its stockholders, and taxes, cost of operating expenses, and the maintenance of the bridge company's organization. It was not agreed, and could not have been, by the bridge company, that the contracting railroads were to have the exclusive right of passage over the bridge. On the contrary, it was expressly stipulated that the bridge company might admit any other railroad or railroads to the same privileges as by the contract were accorded to the then contracting roads, but upon terms no more favorable. As this contract is at the foundation of this litigation, and its construction and application are involved, it is set out at length:

"Agreement made this fifth day of June, 1872, between the Louisville Bridge Company, party of the first part, the Jeffersonville, Madison & Indianapolis Railroad Company, party of the second part, the Ohio & Mississippi Railway Company, party of the third part, and the Louisville & Nashville Railroad Company, party of the fourth part, witnesseth:

"Whereas, the first party owns the bridge over the Ohio river at Louisville, between the commonwealth of Kentucky and the state of Indiana, with the approach thereto on the south or Kentucky side thereof, its capital stock being fifteen hundred thousand dollars, and its mortgage debt eight hundred thousand dollars, bonds for said debt being issued for one thousand dollars each, dated the first day of December, 1868, and payable twenty years after said date with interest at seven per cent. per annum, payable semi-annually in gold on the first day of June and the first day of December, principal and interest payable at the Bank of America, New York City. And, whereas, the second party owns the approach to said bridge on the north or Indiana side thereof and the railroad connecting therewith; and, whereas, the third party owns a railroad connecting with the railroad of the party of the second part at or near the north end of said approach; and, whereas, the party of the fourth part owns a railroad terminating in the city of Louisville and connecting with the track over and across the said bridge.

"Now this agreement witnesseth: In consideration that the second, third and fourth

parties agree respectively to use said bridge as is hereinafter covenanted, the first party hereby covenants and agrees jointly and severally with the second, third and fourth parties, their successors and assigns respectively, that the tolls and charges over and for the use of said bridge and its tracks, owned by the first party, in the transportation of freights, passengers, mails and other goods received from or delivered to the roads of said second, third and fourth parties, per ton, and per passenger or per car, engine or other means of transfer over said bridge, shall be fixed on signing this agreement, and shall not be in excess of a toll or charge sufficient to produce in the aggregate a sum equal to the cost and expense of keeping in repair and taking care of said bridge and the said approach owned by the first party--paying a dividend semiannually of six per cent. on said capital stock of fifteen hundred thousand dollars, the interest upon the said bonds as the same matures and becomes payable--a sinking fund sufficient to pay off said bonds of eight hundred thousand dollars at maturity, the amount necessary to keep up the corporate organization of the party of the first part, with its proper officers and servants, and such taxes as may be chargeable against such bridge company on said bridge or other property pertaining thereto or otherwise; and it is understood and mutually agreed that said charges and tolls shall from year to year be reduced in proportion to the reduction of interest on said bonds by the operation of said sinking fund; and that said tolls and charges shall always be the same to each of the second, third and fourth parties, and that the tolls and charges to other railroad companies for like use of said bridge and the approach owned by the first party shall not be less than those charged to or incurred by the parties hereto. And all such tolls and charges paid by other railroads or railroad companies shall be applied to and form a part of the fund hereinbefore provided for the payment of expenses, sinking fund, interest, dividends and taxes the same as if paid by the second, third and fourth parties.

"Sec. 2. The first party shall keep in repair, maintain and renew the said bridge and its appurtenances, and the tracks and approach thereto owned by the first party. If, however, said bridge or its appurtenances shall be injured by floods, ice, or other casualty, or by crystallization of the iron, or other inherent decay, so as to render same useless or dangerous, and it shall become necessary to rebuild the whole, or any material part thereof, involving an expenditure greater than could be realized from a judicious amount of current rates and charges, then, and in every such case, it is mutually agreed between the parties that the first party shall issue bonds, secured by mortgage on said bridge and its appurtenances and appendages, owned by the first party, at a rate of interest not exceeding seven per cent. per annum in gold, payable semiannually, principal payable in forty years, and to an amount sufficient to yield a fund equal to the expenses of renewing and repairing said bridge, and the proceeds of said bonds shall be applied to that purpose, in which event the tolls and charges for the use of said bridge, as hereinbefore provided, shall be increased so as to cover and provide for the payment of the interest on said bonds, and a sinking fund to retire and take up said bonds at maturity.

"Sec. 3. In consideration of the premises, the second and third parties each severally covenant for itself, its successors and assigns with the first party, its successors, and assigns, that it will pass over the said bridge all the freight, passengers, mails, express matter, and other goods carried on and over their roads to and from Louisville, and to and from points which require their passage over the Ohio river at or near Louisville during the existence of this agreement, and will pay punctually to the party of the first part the tolls and charges hereinbefore provided for the use by them respectively of said bridge and the tracks and approaches thereto, owned by the first party; and the party of the fourth part for itself, its successors and assigns, covenants with each of the parties of the first, second and third parts, their respective successors or assigns, that it will deliver to said party of the first part, to be passed over said bridge, or to the parties of the second or third parts, or to such other railroad company or companies as may for the time being be transporting freight, passengers, mails, express matter and other goods over the said bridge, all the freight, passengers, mail, express matter, and other goods carried on and over its road or any part thereof, destined for Jeffersonville, in the state of Indiana, or any other points which require their passage over the Ohio river at or near Louisville, during the existence of

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