Seaboard Air Line R. Co. v. SARASOTA-FRUITVILLE D. DIST.

• Citation: 251 F.2d 583
• Decision Date: 14 January 1958
• Docket Number: No. 16590.,16590.
• Parties: SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. SARASOTA-FRUITVILLE DRAINAGE DISTRICT, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

251 F.2d 583 (1958)

SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. SARASOTA-FRUITVILLE DRAINAGE DISTRICT, Appellee.

No. 16590.

United States Court of Appeals Fifth Circuit.

January 14, 1958.

Morris E. White, Michael L. Kinney, Tampa, Fla., for appellant.

Charles E. Early, Sarasota, for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The sole question presented here is whether a Florida Drainage District admittedly not liable for torts as such under Florida law, Rabin v. Lake Worth Drainage Dist., Fla., 82 So.2d 353, certiorari denied 350 U.S. 958, 76 S.Ct. 348, 100 L.Ed. 833; Arundel Corp. v. Griffin, 89 Fla. 128, 103 So. 422, is liable to a Railway on an indemnity-hold-harmless agreement in a canal right of way easement granted by the Railway 28 years before. The District Court held that it was not and accordingly dismissed the complaint for failure to state a claim, Fed.Rules Civ.Proc. 12, 28 U.S.C.A.

The specific claim was to recover approximately $28,000 in losses sustained by the Railway as a result of one of its trains being derailed December 5, 1953, with consequent damage to its equipment and personal injury to persons. It was alleged that the derailment was caused by the lowering by the District of its ditches adjacent to the District's undertrack culverts, so that the roadbed gave way and the underlying support to the tracks was lessened.

In 1925 the Railway, for a nominal stated cash consideration ($5) but "* * in further consideration of the faithful performance by the District of its covenants * * *," granted the right to lay, maintain, operate and use two specified culvert crossings under its tracks and right of way. The District was expressly required to pay all costs in the initial installation as well as in the maintenance, use, repair and removal of the facilities.¹ And, of crucial importance here, the District expressly agreed:

"8. The Licensee District hereby assumes all risk of loss, injury or damage of or to the person and the property of the Licensee District and all other persons and property, growing in any manner out of the installation, presence, operation, maintenance or removal of said lines of pipe, or any of the appurtenances or appliances, or any part thereof. And the Licensee District will further, at all times, indemnify and save harmless the Railway from all loss, damage, cost and expense which the Railway may sustain, resulting from loss, injury or damage caused as aforesaid."

What the scope of the indemnity may be, whether, on proof, it covers this occurrence, whether if, as suggested, it arose from the Railway's negligence not within the reach of this terminology, are questions not before us. All the Court below decided, all that confronts us, is the assertion that this indemnity undertaking was beyond the power of a Florida drainage district so that the District could not be liable either on the contract or by estoppel.

We recognize that making our way as best we can in our Erie lights, there is especial reason that we faithfully search out and apply the Florida law. Here we deal not only with Florida law as jurisprudence, but our decision necessarily affects Florida in its political adjustments between members of the public and public creatures of the sovereign. Not the least of the difficulties in the process is that if we err, or if experience proves our decision unsound, unlike the Courts of Florida, we do not have the means or opportunity for correction. Our function is not aided, our travail not lessened, by handy labels of "strict" or "conservative" approach or the like. If, in this problem concerning which Florida has not yet written, it is the Florida policy to recognize the validity of such contracts where property interests are acquired by them, it would not be "strict" construction or "conservative" to hold to the contrary out of some supposed notion that, when in doubt, the judicial function is to lean backwards, not forward.

Consequently, what is the starting point remains just that and is not, as the District urges, the final solution as well. There seems to be little disagreement that Florida treats drainage districts as a special governmental body created for a limited and definite purpose with limited authority and a limited power to tax.²

The approach, as it is for related drainage districts, is that "The creative statute is a grant of power and the supervisors of the district must look entirely to the statute for their authority." State ex rel. Davis v. Jumper Creek Drainage District, 153 Fla. 451, 14 So.2d 900, 901. As these statutes set out the various powers in much detail, "The careful enumeration of these powers is an indication that this board was not to have any others than those enumerated. * * *" Forbes Pioneer Boat Line v. Board of Commissioners of Everglades Drainage District, 77 Fla. 742, 82 So. 346, 351.

From this emphasis on the necessity for express powers, the District urges that, in contrast to the Florida rule for counties investing them also with "* * * implied authority to use means necessary to make the expressed power effective * * *," Molwin Investment Co. v. Turner, 123 Fla. 505, 167 So. 33, a district does not have the power to do those things reasonably necessary to carry out the express power.

We think that giving full voice to this approach, the inquiry remains one of statutory authorization, and as to that, we conclude that this type of contract is authorized.

Under one statutory provision, a district "* * * shall have the right to hold, control and acquire by donation or purchase and if need be, condemn any land, easement, railroad right of way³ * * *," and under another it "* * may acquire by gift, purchase, exchange, donation or condemnation, * * * lands * * * for canal right of ways⁴ * * *."

The acquisition of right of way for ditches, culverts, and canals is an absolute essential to the operation of a drainage district. A district has the express power to acquire and hold property. Whether this easement contract is an "exchange" of a right in land from the Railway in return for the promises of the District in paragraph 8, and those detailed in note 3, supra, we need not narrowly determine. Neither do we resolve it narrowly as a "purchase." The two terms, used in parallel, reflect a purpose to allow some latitude in the choice of means by which the property right is obtained.

The express right to resort to condemnation is a positive assurance that needed property will be acquired. It reinforces the inference that it was to be left to the good faith managerial judgment of the district authorities to determine the relative advantages or disadvantages in the various available means of acquiring the needed facilities. The consideration for the property might be the payment of a lump sum in cash along conventional lines or the payment of stated sums over a fixed period of time. The right and obligation to pay flows from the power to acquire.

But its nature is not altered if the consideration is not cash, but an agreement to do a specific thing. For example, the undertaking in paragraph 5, note 3, supra, to make and pay for repairs to the Railway's property occasioned by maintenance work, removal or replacement of the culverts is certainly reasonable. Could one seriously question the obligation of the district to do these things even had its easement or title been acquired by condemnation? A parallel of this, and just as reasonable, is the undertaking in paragraph 8 imposing on the district responsibility for "* * * loss, injury or damage of or to the person and the property of the Licensee District * * *." Each of these is an essential ingredient to the act of the Railway in granting the right. While the subsequent undertaking in paragraph 8 to indemnify is an additional obligation, the basic nature of it as a consideration moving the Railway to make the grant remains the same.

The legislature has invested the district with authority to acquire by purchase or exchange. It has not prescribed how or in what manner that purchase must be effected, nor the nature or duration of the title. The statutes do not demand that the consideration for the purchase must be cash, now or later. To use a promise as the consideration is a part of the express power (and its exercise) to acquire by purchase-exchange.

Independent of concepts of estoppel which we need not pass on, this approach seems to be a sensible, reasonable businesslike recognition that where one obtains the right to, or use of, property by agreements which are traditional in nature, any such agreement is not a collateral undertaking, but is, in reality, a part of such acquisition. If the property, or the right to its use, comes from the agreement, the agreement, reasonably related to the purpose of the acquisition, is as valid as the ownership. The one does not exist without the other. This concept has been well expressed in H. Hohensee Construction Co. v. Chicago, M. St. P. & P. Ry. Co., 218 Wis. 390, 261 N.W. 242, 243:

"This enumeration of powers implies the power to enter into an agreement of indemnity whenever such an agreement is necessary to its protection or is to its advantage in connection with any contract it has express power to make. * * If it may accept a gift of land for sewer purposes, it may accept it subject to such conditions as accompany the gift. If it may accept a gift of land for such purpose, it may accept a gift of an easement in land for such purpose. If it may purchase land for such purpose, it may purchase an easement in land for such purpose. If it may purchase an easement for such purpose, it may purchase it without other consideration therefor than a promise to indemnify the donor against liability resulting from the use covered by the easement, and against liability to which it is subjected during the making of the structure."

We recognize that it is probable in some states,...