Quality Realty Co. v. Wabash Ry. Co.
| Decision Date | 25 May 1931 |
| Docket Number | No. 8770.,8770. |
| Citation | 50 F.2d 1051 |
| Parties | QUALITY REALTY CO. v. WABASH RY. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ben A. Wood and John M. Goodwin, both of St. Louis, Mo., for appellant.
N. S. Brown, of St. Louis, Mo. (Homer Hall, of St. Louis, Mo., on the brief), for appellee.
Before KENYON and VAN VALKENBURGH, Circuit Judges.
The Hawthorne Investment Company, a corporation of St. Louis, Mo., on and prior to July 11, 1911, was the owner of all of city block 3917 of said city. On that date, it entered into a contract with the Wabash Railroad Company, predecessor of appellee Railway Company. Block 3917 is bounded on the north by Forest Park boulevard, on the east by Sarah street, on the south by Duncan avenue, and on the west by Boyle avenue. The main line of the Wabash runs parallel with, and somewhat more than a city block south of, Duncan avenue. Prior to July 11, 1911, that portion of block 3917 fronting on Forest Park boulevard was restricted to residence use. The restrictions expired about that time, and the Hawthorne Investment Company undertook to convert this entire city block into an industrial district. To this end, in platting the block, it reserved a strip of ground sixteen feet wide, running from the intersection of Sarah street and Duncan avenue northwestwardly a short distance, thence directly west, approximately through the middle of said block to Boyle avenue, for the purpose of placing thereon a railroad lead track, from which switches might be run to the lots on either side thereof, to serve the industries that might be induced to locate on the lots adjoining this sixteen-foot strip, which said lots were offered by the Hawthorne Company for industrial sites. This plan of establishing an industrial district was laid before the Wabash Railroad Company, and, after some negotiations, the contract of July 11, 1911, resulted. This contract recited that the Investment Company, as owner of certain industrial properties in city block 3917 in St. Louis, desired, for the purpose of the industrial development of said property, to have a railroad track constructed from the main line of the Wabash Company, beginning at a point approximately two hundred and fifty-four (254) feet east of the east line of Sarah street in said city, and extending thence in a northerly direction to the south line of Duncan avenue; thence across Duncan avenue by means of an overhead bridge or viaduct (to be constructed as in said contract provided); thence in a general westerly direction to or near the east line of Boyle avenue in said city block 3917. The Wabash Company expressed its willingness to construct, or to have constructed, the railroad track in question, in accordance with the terms and provisions of the contract. Under these terms the Investment Company was to and did, at its own cost and expense, furnish all tools, materials, labor, machinery, and other things necessary to construct, and did construct, the overhead bridge or viaduct across Duncan avenue at its intersection with Sarah street, in accordance with an ordinance authorizing this structure. The Investment Company further was to maintain this viaduct in a safe condition for the passage of railway rolling stock, and as required by the municipal authorities of St. Louis. After the construction and acceptance of this viaduct, the Wabash Company, upon the written request of the Investment Company, was to, and did, construct a railroad track from the point in its main line two hundred and fifty-four (254) feet east of the east line of Sarah street, over the route hereinabove described, to a point at or near the east line of Boyle avenue. It was further provided that the Investment Company was to deposit with the Wabash Company the estimated cost of the materials and labor necessary for the construction of the track covered by said written request; and should grant to the Wabash Company a right of way for that part of said track located within the limits of city block 3917. The Wabash Company was to keep an accurate account of the cost of this construction and was, thereafter, to refund to the Investment Company the cost of the construction of that part of the track extending from the point of its connection with the main track of the Wabash Company to the south line of the viaduct or railroad bridge. This refund was to be at the rate of two dollars ($2.00)
The Wabash Company was to maintain, at its own cost and expense, that part of the track last above described, and was also to keep the remaining part of the track in repair, but at the expense of the Investment Company. Following are other material parts of the contract:
Meantime, the Hawthorne Investment Company and its successor, the Quality Realty Company, have sold the lots in city block 3917 to various industries, among them J. I. Case Threshing Machine Company, Art Mosaic & Tile Company, Firestone Tire & Rubber Company, Linde Air Products Company, Goodyear Rubber Company, Kewanee Boiler Company, Standard Sanitary Manufacturing Company, Ford Motor Company, American Radiator Company, Wolff Manufacturing Company, and St. Louis Comey Company, all of which, except one, own, and all of which maintain industrial spur tracks connecting with the switching lead track on the sixteen-foot strip over which appellee serves the aforesaid industries. In the deeds to these industries, the Hawthorne Investment Company and/or appellant, its successor, has, by instruments of conveyance, conveyed the fee-simple title to their respective lots and parcels of ground, together with permanent easements in and over the sixteen-foot railroad right of way. These grants of easements are in various effective forms. That to American Radiator Company, of date May, 1913, reads thus: "Including the right to forever use in common with other owners of property abutting thereon the certain railroad track laid on the 16 foot railroad right-of-way which track shall be used for switching purposes only."
That granted to Linde Air Products Company in April, 1915, is as follows:
Between March 20, 1917, and February 16, 1917, appellant made continuous efforts to effect a sale of this right of way and tracks to appellee. On the latter date, it gave the three months' notice of its intention to terminate the contract of July 11, 1911, to become effective May 16, 1917. Again it sought to sell or lease this trackage to appellee. The Wabash replied that appellant's predecessor built this track as an inducement for the location of industries, which would permit it to dispose of the property in block 3917; that the railroad was then performing service for the industries which had purchased property adjacent to this trackage; that appellant owned nothing which the railway desired to purchase. It announced that it would not operate over this lead track on and after May 16, 1917. To prevent injury to the industries, appellant and appellee on May 9, 1917, entered into an agreement containing the following stipulation:
It was further understood that the respective obligations and rights of the parties might be determined either...
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