Seaboard Air Line Ry. Co. v. Tampa Southern R. Co.

• Decision Date: 12 March 1929
• Citation: 121 So. 477,97 Fla. 340
• Parties: SEABOARD AIR LINE RY. CO. v. TAMPA SOUTHERN R. CO.
• Court: Florida Supreme Court

121 So. 477

97 Fla. 340

SEABOARD AIR LINE RY. CO. v. TAMPA SOUTHERN R. CO.

Florida Supreme Court, Division B.

March 12, 1929

Bill for injunction by the Tampa Southern Railroad Company against the Seaboard Air Line Railway Company. From an adverse decree, defendant appeals.

Affirmed in part, and in part reversed and remanded.

Syllabus by the Court

SYLLABUS

Bill to enjoin interference with construction of tracks held not to sufficiently allege reasonable diligence in prosecuting construction begun before Transportation Act, to obviate necessity of certificate of convenience and necessity (Transportation Act 1920, § 402, par. 18; 49 USCA § 1(18). In a bill to enjoin interference with construction of railroad tracks, averment that construction in question was part of original project begun prior to enactment of Transportation Act 1920, § 402, par. 18 (49 USCA § 1(18), and prosecuted with reasonable diligence under circumstances, held insufficient to show that work had been prosecuted with reasonable diligence in accordance with original plan, so as to obviate necessity of certificate of public convenience and necessity from Interstate Commerce Commission.

Amendment of bill to restrain interference with track construction alleging advice of bureau director, held insufficient to show certificate of convenience and necessity dispensed with (Transportation Act 1920, § 402, par. 18; 49 USCA § 1(18). Amendment of bill to enjoin interference with construction of railroad tracks, alleging advice of director of bureau of finance of Interstate Commerce Commission that certificate of public convenience and necessity, as required by Transportation Act 1920, § 402, par. 18 (49 USCA § 1(18), was unnecessary, held of no materiality as showing diligent prosecution of work begun before enactment of statute; such advice being individual expression of opinion.

Allegations that proposed tracks were spur or switch tracks held not to show unnecessary certificate of convenience and necessity from Interstate Commerce Commission (Transportation Act 1920 § 402, par. 22; 49 USCA § 1(22). Amendment of bill to restrain interference with construction of railroad tracks alleging that track in question constituted industrial spur and switch constructed to reach certain shipping industries near water terminals, held insufficient to dispense with necessity of certificate of convenience from Interstate Commerce Commission, under Transportation Act 1920, § 402 par. 22 (49 USCA § 1(22), providing that authority of Interstate Commerce Commission, conferred by paragraphs 18-21, shall not extend to construction of spurs or switching or side tracks located wholly within one state.

Plaintiff, seeking to enjoin interference with track construction, cannot claim rights under contract between other railroads to which it was stranger. In an action to enjoin interference with construction of railroad tracks, an amendment setting up contract between defendant and another corporation alleged to be the owner of plaintiff corporation held demurrable, plaintiff not being entitled to claim any rights under contract to which it was not party.

Amendment of bill alleging manifest injury and want of remedy at law held not demurrable. Amendment of bill to restrain interference with construction of railroad tracks, merely alleging manifest wrong and oppression and absence of remedy at law, held not demurrable.

Defendant may test amended bill by general demurrer, notwithstanding general demurrer to original bill had been overruled. Where bill to restrain construction of railroad tracks was materially amended after general demurrer thereto had been overruled, defendant was entitled to interpose general demurrer to amended bill, and should not be required to answer portions of amended bill, until ruling on such general demurrer had been had.

Appeal from Circuit Court, Sarasota County; W. T. Harrison, judge.

COUNSEL

John B. Singeltary of Bradenton, for appellant.

John H. Carter, of Sarasota, for appellee.

OPINION

GIBLIN Circuit Judge.

This cause had proceeded in the lower court to the taking of testimony upon the issues presented by the bill of complaint of the complainant (appellee) and the answer of the defendant (appellant). The defendant's general demurrer to the bill had been overruled prior to the filing of the answer. The order overruling the demurrer was not appealed from, and its propriety is not to be reviewed here.

On the date set for the hearing of the testimony the defendant applied to the court for leave to amend its answer. Leave to file the tendered amendment was granted, except as to certain portions thereof which were not allowed to be filed. After the defendant had amended its answer, the complainant applied to the court for leave to reply to the answer, as amended, or to amend its bill, to meet the averments of the answer, as amended. Such leave was granted, and subsequently the complainant amended its bill by striking a certain paragraph thereof and inserting a paragraph in its stead, and by adding two additional paragraphs.

In the order granting leave to the complainant to reply to the answer, as amended, or to amend its bill, it was provided that, 'in the event the bill is amended in lieu of of the filing of a special replication, the defendant shall have 20 days from the filing of the amendment in which to plead, answer, or demur, as it may be advised.'

After complainant's bill had been amended, the defendant, within 20 days, filed a general demurrer to the complainant's bill, as amended, and a special demurrer addressed severally to each of the paragraphs incorporated in the bill by amendment.

The solicitors for the complainant then set down for argument before the court the special demurrer of the defendant. The general demurrer of the defendant to the entire bill, as amended, was not set down for argument.

Upon the hearing of the special demurrer it was overruled by the court and the defendant was allowed 20 days in which 'to answer the said amendments,' and it is from this order that this appeal is prosecuted.

It is unnecessary to review at length the allegations of the complainant's bill, but, for the sake of intelligible discussion of the questions here presented, it may be well to briefly state the character of the suit and the nature of the relief sought by the complainant.

It appears from the allegations of the bill that the complainant had been granted by the city of Sarasota the right to construct, upon a certain strip of land owned in fee simple by the city, a line of railway tracks, and to connect such tracks with certain other tracks which had been previously constructed on said land, and which were owned by the city, for the purpose of affording to the complainant access by trains and cars to certain water terminals located upon the land owned by the city, and to enable the complainant to provide transportation facilities to such industries as should be established and located adjacent to the involved strip of land. It is alleged in the bill that the defendant, which had been previously granted by the city the right to use, and to operate trains and cars upon, the city's tracks which were already constructed upon the strip of land, had, without the consent of the city or of the complainant, constructed certain dead-end spur tracks over and across the right of way which had been granted by the city to the complainant, and had placed empty freight cars on such spur tracks for the purpose, and with the effect, of obstructing the construction by the complainant of the tracks it proposed to construct, and preventing the enjoyment by the complainant of the privileges which had been granted to it by the city. Other pertinent facts were alleged.

The complainant seeks primarily to have the alleged interference by the defendant enjoined.

The amendment to the defendant's answer, which occasioned the amendment of the complainant's bill, contained the averment that the construction of the line of railway proposed by the complainant, which is a railroad company engaged in interstate commerce, was an extension of the complainant's line of railroad, and that the complainant had not procured, in accordance with the act of Congress, known as the Transportation Act of 1920 (Act of Congress of February 28, 1920, c. 91, § 402, par. 18; 49 USCA § 1(18), a certificate 'that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line of railroad.'

The complainant made no attack upon the amendment to the answer, treating its averments as proper matters of defense, and to meet such averments amended its bill.

The first of such amendments consisted of the substitution of a paragraph for one which was stricken from the bill. In the substituted paragraph (numbered X) the complainant alleged among other things, that the proposed construction of the tracks in question was a part of the original project of the complainant for the construction of its railroad from a point near the city of Tampa southerly to the city of Sarasota; that such original project contemplated, embraced, and included the construction of the tracks which constitute the subject-matter of this suit; and that such original project had been begun prior to the enactment of the Transportation Act. There were allegations designed to show that the work incident to the effectuation of the original project had been prosecuted with reasonable diligence, under the circumstances, in accordance with the original...