Joy v. St. Louis - 138 U.S. 1 (1891)


U.S. Supreme Court

Joy v. St. Louis, 138 U.S. 1 (1891)

Joy v. St. Louis

No. 106

Argued December 9-10, 1890

Decided January 19, 1891

138 U.S. 1

Syllabus

In this case, it was held that under two agreements made August 11, 1875, one between the St. Louis County Railroad Company and the St. Louis, Kansas City and Northern Railway Company, and the other called the "tripartite agreement," between the Commissioners of Forest Park in the City of St. Louis, the said County Company and the said Kansas City Company, and a deed of the same date from the former company to the latter company, the Wabash, St. Louis and Pacific Railway Company was bound to permit the St. Louis, Kansas City and Colorado Railroad Company to use its right of way from the north line of Forest Park, through the park, to the terminus of the Wabash company's road at Union Depot, on Eighteenth Street, in St. Louis, for a fair and equitable compensation.

The covenants in paragraph 9 of the tripartite agreement, as to the use of the right of way by other railroad companies, are binding upon subsequent purchasers, with notice, from the Kansas City Company.

That agreement being a link in the chain of title of the appellants, they must be held to have had notice of its covenants, and are bound by them whether they be or be not strictly such as run with the land.

Paragraph 9 of the tripartite agreement created an easement in the property of the County Company and the Kansas City Company for the benefit of the public, which might be availed of, with the consent of the public authorities, properly expressed, by other railroad companies which might

Page 138 U. S. 2

wish to use not only the right of way through the park, but also that between the park and the Union Depot.

The two agreements and the deed constituted a single transaction, and should be construed together, and liberally in favor of the public.

Such easement covered the tracks through the park and the tracks east of the park to the Union Depot.

The Circuit Court had power to enforce the specific performance of the agreement by enjoining the appellants from preventing the Colorado company from using the right of way, and to fix the amount of compensation by its use.

A remedy at law would be wholly inadequate.

The rights of the public in respect to railroads should be fostered by the courts.

The object of protecting the park and that of preserving and fostering the commerce of the city were set forth in the tripartite agreement, and the City of St. Louis, a plaintiff in the suit, as charged with those duties, was not merely a nominal party to this suit.

This is an appeal by James F. Joy, Thomas H. Hubbard, Edgar T. Welles, and O. D. Ashley, as purchasing committee, the Central Trust Company of New York and James Cheney, as trustees, and the Wabash, St. Louis and Pacific Railway Company, a Missouri corporation (hereinafter called the "Wabash Company") from a decree of the circuit court of the United States, for the Eastern District of Missouri, made December 31, 1886, on a bill of intervention filed July 12, 1886, in the same court, by the City of St. Louis, a municipal corporation of the State of Missouri, and the St. Louis, Kansas City and Colorado Railroad Company, a Kansas corporation (hereinafter called the "Colorado Company") against the Wabash Company and its receivers. This bill of intervention was filed in two causes pending in the same court consolidated into one. One of them was a bill in equity, filed by the Wabash Company against the Central Trust Company of New York and others on the 27th of May, 1884, for the appointment of receivers of the Wabash Company because of its insolvency, setting forth that it had executed two mortgages, one known as the "general mortgage" and the other as the "collateral trust mortgage," the first of them June 1, 1880, to the Central Trust Company of New York and James Cheney, as trustees, and the other of them May 1, 1883, to the Mercantile Trust

Page 138 U. S. 3

Company of New York. In the said suit, a cross-bill was filed in the same court on June 9, 1884, by the Central Trust Company of New York and James Cheney, as trustees, to foreclose the said general mortgage and certain sustaining mortgages executed in aid of it. An amended bill was filed June 15, 1884, and an amended cross-bill October 14, 1884. The second suit was one brought January 13, 1885, by the Central Trust Company of New York and James Cheney, as trustees, in the Circuit Court of the City of St. Louis, in Missouri, against the Wabash Company and others, praying the same relief prayed for in such cross-bill filed June 9, 1884. This suit was removed into the Circuit Court of the United States for the Eastern District of Missouri, and was consolidated, on March 19, 1885, with the suit the bill in which was filed May 27, 1884.

A decree of foreclosure and sale was made in the consolidated cause on January 6, 1886, under which, on April 26, 1886, the railroads and property were sold to Joy, Hubbard, Welles, and Ashley, as purchasers. The sale was confirmed June 15, 1886, and deeds were ordered to be executed to the purchasers. Meantime, and before the deeds were executed, the bill of intervention was filed. The railroad property in question was all the time in the hands of Solon Humphreys and Thomas E. Tutt, as receivers appointed by the court on May 27, 1884.

The facts involved in the present appeal depend almost entirely upon documentary evidence, and, as agreed upon by the parties in their respective briefs, may be stated as follows:

This action was brought to compel the specific performance of a contract through which the Colorado Company claimed to be entitled to a joint use with the Wabash Company of that portion of the tracks of the latter company which extends eastwardly from a point on the northern line of Forest Park, through the park, and from thence to the Union Depot in the City of St. Louis at Eighteenth Street. The facts out of which the controversy arose are substantially as follows:

(1) In August, 1871, a railway corporation known as the "St. Louis County Railroad Company" (hereinafter called the "County

Page 138 U. S. 4

Company") was organized under the general laws of Missouri to construct a narrow-gauge railroad from the City of St. Louis in a westerly direction to a point in the County of St. Louis, 16 miles from the city.

(2) On November 3, 1871, W. D. Griswold was the owner of a tract of land lying immediately west of the City of St. Louis, known as the "Cabanne Dairy Farm," and on that date he sold and conveyed to the County Company a right of way forty feet in width through the tract owned by him.

(3) On March 25, 1874, the Legislature of Missouri passed an act for the establishment of Forest Park, in the County of St. Louis, immediately west of the city. The act described the property which might be taken by condemnation for park purposes, and included the farm or tract owned by Griswold. The third section of the act contained the following proviso:

"Provided that nothing in this act contained shall prevent the St. Louis County Railroad Company from using and occupying a right of way of the width of not more than seventy feet through the northeastern portion of said Forest Park; the said railroad shall only enter the park through Duncan's Subdivision on the east side of said park, and running westwardly on the northern side of the River Des Peres, shall pass out of said park at a point on the northern line thereof, east of Union Avenue, and provided further that no switch or siding shall be constructed by said railroad company in said park, nor shall more than one depot be established in said park, and that shall be for passengers only, and provided further that the grade of said railroad, as far as the same runs through said Forest Park, shall be approved by said park commissioners."

Laws of Missouri, 1874, p. 371.

(4) On August 11, 1875, the County Company having located its line between the city and the park and having acquired some detached portions of a right of way through a number of lots and blocks between the Union Depot and the park, and the St. Louis, Kansas City and Northern Railway Company (hereinafter called the "Kansas City Company") already having a line of railroad from St. Louis to Kansas City which connected on the northern line of the park with the right of

Page 138 U. S. 5

way and line of the County Company, those two companies entered into a written contract in which the County Company agreed to convey to the Kansas City Company, for the sum of $125,000, a strip twenty-eight feet wide through each tract owned by it, between the eastern line of the park and the western limits of the city, and a strip thirty feet in width through each tract lying between the western limits of the city and the Union Depot at Eighteenth Street, and also an undivided one-half of all the right of way it then owned or might thereafter acquire, through the park. The contract also provided, among other things, that inasmuch as the Kansas City Company was to make a tunnel and cut just east of the park, it should let the trains of the County Company pass through said tunnel and cut under such regulations and restrictions as were agreed upon with respect to trains in the park and elsewhere. It was then provided that the use of the property in the park and through the tunnel and cut should be in common, but that the Kansas City Company should have absolute control of the running and starting of its own trains and the making of its own time-tables, and that no train of the County Company or its assigns should be started within eight minutes of the time fixed for starting the trains of the Kansas City Company; that there should be twenty minutes' time between the starting and coming in of the trains of the County Company; that only the County Company should have a depot in the park, and that the Kansas City Company should not have a depot or stop its trains in the park. The contract also provided that at two specified places within the city limits where the right of way of the County Company was narrowest, it (the County Company) might lay and use one rail on the right of way of the Kansas City Company; that where proceedings for condemnation or negotiations had been commenced by the County Company, the same should be prosecuted or discontinued, as requested by the president of the Kansas City Company; that in consideration of the covenants therein contained and of certain covenants and agreements on the part of the Commissioners of Forest Park contained in another agreement of even date therewith, the Kansas City Company

Page 138 U. S. 6

should construct and maintain its railroad through the park, tunnel, and cut for the joint use of both of said railroad companies, and that the County Company would, within two years, pay to the Kansas City Company one-half of the actual cost of constructing said road through said park, and said tunnel and cut, or forever relinquish to the Kansas City Company all claims to the road and property in said park, tunnel, and cut. This contract was signed by said parties and delivered, but it was never acknowledged or recorded in the office of the county recorder.

(5) On the same day the foregoing contract was made, the County Company, in pursuance of its agreement, conveyed to the Kansas City Company a strip twenty-eight feet in width through each lot or tract owned by it between the eastern line of the park and the western limits of the city; a strip thirty feet wide through each lot or tract owned by it between the western limits of the city and Tayon Avenue in the City of St. Louis, and an undivided one-half of all its right, title, and interest in or to the right of way, and other privileges and franchises then owned or held by it, or which might thereafter be owned or held by it, through said park. The portions of the foregoing deed which are material to this controversy are as follows:

"And also the said party of the first part [the County Company] hath conveyed, assigned, and transferred, and by these presents doth convey, assign, and transfer, unto the said party of the second part [the Kansas City Company] the right of way over and upon the following described piece of land, situated between King's Highway and Union Avenue, a strip of land twenty-eight (28) feet in width off the southern portion, and for the whole length thereof, of that part of the right of way granted to said party of the first part by W. D. Griswold by deed dated November 3, 1871, and recorded in the office of the Recorder of St. Louis County aforesaid in book 443, page 96, lying between the northern line of Forest Park and the eastern line of Union Avenue, all of which right of way conveyed by said deed is described as follows, to-wit: a strip of land forty (40) feet in width, the center line of which begins at King's

Page 138 U. S. 7

Highway, twenty (20) feet north of the southeast corner of the land of said Griswold, known as the 'Cabanne Dairy Farm,' and running thence westerly along parallel to the south line thereof eight hundred and twenty-five (825) feet; thence by a curve eleven hundred and seventy (1,170) feet long, bearing north-west with a radius of nineteen hundred and three (1,903) feet; thence by a line bearing north 55, west about ten hundred and ninety (1,090) feet to a point on Union Avenue, not less than four hundred and eighty-seven (487) feet south of the northeast corner of Robert Forsyth's land. . . . And also the said party of the first part hath conveyed, assigned, and transferred, and by these presents doth convey, assign, and transfer, unto the said party of the second part and to its successors and assigns, an undivided one-half of all the right, title, or interest of the party of the first part of, in, or to the right of way, and of, in, or to any and all other rights, privileges, and franchises, powers, and immunities, owned by, or vested in, or enjoyed by, or that may hereafter be acquired and owned by, vested in, or enjoyed by, the party of the first part in, through, or upon Forest Park by any means or from any source whatever; all of which conveyances of the said rights of way in this deed mentioned are made subject to the terms and conditions upon which the same were granted to the party of the first part."

The foregoing deed contained the ordinary covenants of warranty, and was duly acknowledged and recorded in the office of the recorder of said county August 13, 1875. The several pieces of right of way owned by the County Company and conveyed by it to the Kansas City Company are indicated in blue on Chart A, in the printed record.

(6) On the same day (August 11, 1875) another agreement was entered into, known as the "tripartite agreement," the parties to it being the Commissioners of Forest Park, party of the first part, the County Company, party of the second part, and the Kansas City Company, party of the third part. This tripartite agreement began by reciting:

"That said Forest Park Commissioners, in consideration of the relinquishments, agreements, and stipulations hereinafter contained on the part of the said party of the second part, do hereby accept and approve

Page 138 U. S. 8

the line and grade of said railroad as laid down and described upon the accompanying plat and profile hereto attached and forming part of this agreement, and said line and grade, in case there is no forfeiture of this agreement, is hereby fixed as the sole and finally established right of way to which said party of the second part is entitled, by statute or otherwise, through said park, or any part thereof, and the width of said right of way, as established by statute, is hereby reduced from seventy (70) feet and fixed at forty-two (42) feet between its outer points."

The County Company then relinquished twenty-eight feet off the seventy feet of its right of way established by statute through the park, leaving its right of way through the park forty-two feet in width. The agreement then, in eight successive paragraphs, provided for the manner of constructing the roadbed through the park by the County Company -- that it should not be so constructed as to mar the landscape beauty of the park -- and for the building of a depot in the park just outside of the right of way, but immediately adjoining it. The eighth and ninth paragraphs read as follows:

"Eighth. The work of constructing said railroad through said park shall be commenced in good faith by the party, as hereinafter specified, within ninety (90) days from the delivery hereof, and shall be completed in one year thereafter under penalty of a forfeiture of this agreement, and, upon completion thereof, the railroads shall be operated through said park so as to prevent unnecessary noise or inconvenience to the public as far as reasonably practicable, and the roads or their assigns shall comply with all reasonable rules or regulations of said park commissioners in that respect, and all of the aforesaid permanent improvements shall be kept and maintained in such condition as will not injuriously affect or mar the landscape beauty of the park, this provision referring to the aforesaid forty-two (42) feet right of way roadbed, and said party of the second part, or its assigns, shall also keep its police or guard, within the limits of the park, neatly uniformed."

"Ninth. Said party of the second part shall permit, under such reasonable regulations and terms as may be agreed upon, other railroads to use

Page 138 U. S. 9

its right of way through the park and up to the terminus of its road in the City of St. Louis upon such terms and for such fair and equitable compensation to be paid to it therefor as may be agreed upon by such companies."

The tenth paragraph is an admission by the County Company that its right of way is not exclusive, and that the agreement is not to be construed as limiting or impairing the right of the park commissioners to grant other rights of way to other railroad companies. The twelfth paragraph is as follows:

"And whereas, for the purpose of enabling the party of the third part to reach the Union Depot of St. Louis, Missouri, an amicable arrangement and agreement for a right of way outside of and through said Forest Park has been made and entered into by and between the parties of the second and third parts, and in pursuance thereof the parties of the second and third parts are to enter upon and enjoy the right of way, and all the rights, privileges, immunities, powers, improvements, and property belonging to or vested in or that may belong to or vest in the party of the second part, in common in, upon, and through said park under certain regulations, terms, and conditions agreed upon by and between said parties therein, and whereas, the party of the third part, in further pursuance of said last-named agreement, is about to construct, maintain, and operate a railroad in, upon, and through said park at great expense, and to engage in other great outlays and to assume other heavy burthens and responsibilities to be of advantage to said third party through the continued enjoyment of said right of way and other rights, privileges, powers, franchises, immunities, improvements, and property in, upon, and through said park, now therefore in view of the premises, and as inducements to said party of the third part to proceed as intended, the party of the first part does hereby grant and convey unto, and license and permit, the said party of the third part, its successors and assigns, to have, hold, use, and enjoy said right of way in, upon, and through said park in common with, and to be held and enjoyed jointly with, said party of the second part and its assigns on the terms of the said contract between them, and under the same terms and

Page 138 U. S. 10

conditions as are hereby and hereinbefore imposed upon said party of the second part, and which are hereby assumed by said party of the third part as to improvements, except as to building a depot and switch in said park, which the party of the second part is to do itself, or in case said party of the second part, its successors or assigns should forfeit its said rights, privileges, and franchises in, upon, and through said park, or from any cause cease to have, maintain, or enjoy the same, then it is hereby agreed and covenanted that the party of the third part shall not also be excluded from said park, but shall, with its successors and assigns, continue to have, maintain, and enjoy all of said rights, privileges, immunities, franchises, improvements, and property, on the terms hereinbefore set forth, continuously and forever."

The thirteenth paragraph provides that the Kansas City Company shall have no depot in the park. The fourteenth paragraph, insofar as it is material, is as follows:

"Now therefore, in consideration thereof and of the agreement of the party of the third part herein, the party of the first part herein accepts the agreement and contract of the party of the third part herein to execute, perform, and comply with all of the terms, provisions, and things herein mentioned to be done, performed, or complied with as to said improvements, except as aforesaid, by the party of the second part hereto, and in lieu and stead of said party of the second part hereto, so far as assumed as aforesaid, releasing it therefrom, and in consideration thereof the party of the third part hereto covenants and agrees with the other parties hereto that it will, in lieu and stead of the party of the second part hereto, do, perform, and comply with all the terms and provisions, matters, and things herein expressed to be done, performed, or complied with by said party of the second part as to said improvements except as aforesaid, subject to the terms and conditions in said agreement of even date herewith contained, and it is hereby expressly covenanted and agreed that a compliance by the party of the third part, for itself or for itself and the party of the second part jointly, in the construction of said railroad in, upon, and through said park, tunnel, and cut in accordance with the

Page 138 U. S. 11

terms of this agreement, shall be taken and accepted as performance of the conditions imposed upon said party of the second part, and it is further expressly covenanted and agreed that all and every part of the work, its kind, description, and extent, to be performed by either of said parties of the second or third parts is hereinabove expressed, and neither of said parties shall be held or required to do or perform any other or further work and conditions than those hereby definitely set forth."

The last clause of the contract provides that neither of said railroad companies shall be required to supply any material, or do any of the work, necessary to construct or maintain either of the arched entrances into or exits from said park, but that all the work and material required in the construction of said arches shall be paid for by the park commissioners. The foregoing contract was signed by the parties, but it was never acknowledged as a deed. It was afterwards, in 1879, recorded in the office of the county recorder.

(7) The evidence shows that after the execution of the foregoing deed and contracts, the Kansas City Company acquired from divers parties the necessary additional right of way between the park and the Union Depot, and proceeded to construct and put in operation its road through the park, tunnel, and cut, and on down to the Union Depot in the city, the road through the park being on the line established by the tripartite agreement; that at the same time, the park commissioners proceeded with the work referred to in the last clause of that agreement and expended for material and work on the arched entrances or exits, rendered necessary by the presence of the railroad in the park, and in the erection of walls for the tunnel in the park, nearly $40,000; that the road through the park was completed in 1876 by the Kansas City Company, and that the County Company having failed in the performance of all its covenants, and having failed to refund to the Kansas City Company any portion of the cost of constructing the road through the park, it lost and abandoned all claim to the right of way and roadbed through the park, tunnel, and cut, and the Kansas City Company thereupon, under the terms of the agreement, took sole control of the

Page 138 U. S. 12

road through the park, tunnel, and cut. Afterwards, in 1878, it acquired, by purchase from third parties, all the property and rights of way of the County Company between the park and the Union Depot.

(8) In 1879, the Kansas City Company was consolidated with the Wabash Railway Company under the name of the "Wabash, St. Louis and Pacific Railway Company." The Wabash Company assumed all the obligations of the Kansas City Company, and insofar as this controversy is concerned, the consolidation was only a change of name.

(9) In 1880, the Wabash Company conveyed its property in trust to Central Trust Company of New York and James Cheney, to secure a series of bonds, $18,000,000 of which were issued and sold. In 1884, the Wabash Company became insolvent, and Solon Humphreys and Thomas E. Tutt were, by the Circuit Court of the United States for the Eastern District of Missouri, appointed receivers of its property, and afterwards bills were filed by the Central Trust Company and Cheney to foreclose said mortgage, as before mentioned.

(10) In 1886, while Humphreys and Tutt, receivers, were in possession of the Wabash property, the Colorado Company, having constructed a line of railroad connecting with the Wabash road at the north line of Forest Park, and of the same gauge, demanded of the receivers permission to run its cars over the Wabash tracks through the park and down to the Union Depot in the city, which Union Depot was, on August 11, 1875, and has since continued to be, the only general passenger depot reached by all railroads entering the city. The Colorado Company contended that it was entitled to this right under the contracts aforesaid, and particularly under the provisions of the ninth and the subsequent paragraphs of the tripartite agreement. This claim was denied by the receivers, and thereupon the Colorado Company and the City of St. Louis filed their said bill of intervention, setting forth the facts above stated and praying the court to enjoin and restrain the Wabash Company and the receivers from interfering with its use of said property. The City of St. Louis joined in the proceeding as the successor of the park commissioners,

Page 138 U. S. 13

the park having, by appropriate legislation, been brought within the jurisdiction of the city. An amended bill of intervention was filed August 4, 1886. The prayer of the amended bill was as follows:

"Your orators pray that a writ of injunction issue out of, and under the seal of, this honorable court, enjoining and restraining the said Wabash, St. Louis and Pacific Railway Company, and the said Solon Humphreys and Thomas E. Tutt, as such receivers, and each of them and of their agents, servants, counselors, and employees from in any manner refusing to permit your orator, the St. Louis, Kansas City and Colorado Railroad Company, under such reasonable regulations and terms as to this court may seem proper from using the said right of way of said Wabash, St. Louis and Pacific Railway Company, commencing at the north line of said park, where the railway of said Wabash, St. Louis and Pacific Railway Company enters said park, thence over said right of way to said Eighteenth Street in said City of St. Louis, by running its engines and cars over and upon said right of way, including the tracks of said Wabash, St. Louis and Pacific Railway Company between the points at said Union Avenue and said Eighteenth Street."

In their answer, the Wabash Company and the receivers admitted the execution of the agreements, but denied that under them, or either of them, the Colorado Company had any right to use any portion of the Wabash tracks or right of way through the park or between the park and Eighteenth Street. The answer then stated the facts concerning the execution of the general mortgage by the Wabash Company in 1880 to the Central Trust Company and Cheney; averred that the Wabash Company had made default in the payment of interest on its bonds; that by the terms of said mortgage, said trustees were entitled to possession of said property; that said receivers were in possession of said railroad under said mortgage for the benefit of the holders of said mortgage bonds, and that neither said bondholders, trustees, or receivers were privy to or bound by any agreement or contract made by the County Company with said park commissioners, with respect to the use of its railroad through said park or elsewhere, by other railroad companies. The answer

Page 138 U. S. 14

then denied that the intervenors were entitled to the relief prayed for, and set up the several defenses stated and relied upon by the appellants.

(11) On the issue thus presented, the case was referred to a special master, who reported in favor of the claim made by the intervenors. Considerable testimony was taken by the master, but it related almost entirely to matters affecting the compensation to be paid for the use of the tracks and property in question, and it is unnecessary to refer to it in detail. The following testimony of witnesses, on other points, was given: S. T. Emerson, chief engineer in charge of the construction of the Kansas City road from the Union Depot to the north line of the park, testified as follows:

"Q. Now from that point [Forsyth Junction] to the Union Depot, what is the most or the only practical entrance to the depot from that point?"

"A. The Wabash railroad."

W. Emerson also testified as follows:

"Q. How many tracks, if any, are on the right of way where the Wabash railway now enters the park from Eighteenth Street, the thirty feet from Eighteenth Street to the park, and the forty-two feet through the park?"

"A. There are occasional places where there is a side track. There could not be but one track besides the main track on the thirty feet."

Andrew McKinley, president of the board of Forest Park Commissioners at the time the tripartite agreement was made, testified as follows:

"Q. What was the policy of the board, with reference to railroads passing through the park at the time of the execution of the tripartite agreement?"

"A. There was a great deal of discussion, and there was quite a controversy about where the road should run, under the provision which I have mentioned, [referring to the act of the legislature requiring the county road to enter on the eastern side through Duncan's subdivision.]"

"Q. Please describe the park to the master, whether it has been improved, and, if so, how, in a general way?"

"A. The provisions contained in the proviso that I have just spoken of were intended to protect the park against the invasions of all railroads, unquestionably. I put it there myself."

"Q. What effect would the invasion of the park by railroads have upon the park for the purpose for

Page 138 U. S. 15

which it was established?"

"A. I think a very damaging effect upon the point of use, and upon the point of landscaping."

"Q. For what purposes was the park intended to be used principally -- as a driving park?"

"A. It is shown in the act itself to be dedicated to the people of the city and County of St. Louis for their enjoyment forever -- that is, a pleasure ground for the people of St. Louis."

"Q. Are there drives running through it?"

"A. Yes, sir; nineteen and three-quarters miles of drives through the park."

"Q. What effect would the penetration of the park by railroads at different points have upon the park as a driving park?"

"A. Up to this time, it was apprehended that the road would produce some great danger to persons visiting Forest Park, and it was a long time before that public impression was relieved of the apprehension that horses would be frightened, and hence there is a provision that the road shall be covered over with a cover, or protected by trees. During the time I was president of the park, it was not thought to be necessary."

"Q. How much money has been expended in beautifying the park?"

"A. $405,000 during my administration. Since that time, nothing. It remains as it was then."

"Q. What does it represent in money today?"

"A. In cash paid $1,300,000, and, besides that, some contributions made by the city since. The interest on that sum, of course, is to be added. The bonds are thirty-year bonds."

Cross-examination:

"Q. Now the expenditures by the park commissioners were in the erection of masonry composing these two arches and the principal viaduct through which the people enter the park. It was in the masonry composing those structures?"

"A. Yes, sir; there would have been no necessity for them except for the railroad."

"Q. They were made necessary by the railroad?"

"A. Yes, sir."

"Q. They were for the convenience of persons passing in and out of the park?"

"A. Yes, sir."

"Q. Without the railroad, there would have been no necessity for the culverts? They were the entrances for carriages and footmen?"

"A. Yes, sir."

A. A. Talmage, general manager of the Wabash Company, testified as follows:

"Q. Would it be practicable for any other road subject to your rules and regulations to use the track from the north line of the park to the

Page 138 U. S. 16

depot? I mean the main track."

"A. It could be done under the rules and regulations of this company, but usually it is done by substituting the motive power and trainmen of our own road to handle the trains of foreign roads."

(12) The Wabash Company and the receivers excepted to the reports of the master (of which there were two) on various grounds, which need not be given in detail.

(13) The exceptions were argued before the court held by MR. JUSTICE BREWER, then circuit judge, and Judge Treat, and it held (29 F. 546) that, under the contracts, the Colorado Company had the right to use, on such terms and subject to such regulations as to the court seemed equitable, the Wabash tracks through the park, and from the park down to the connection with the Union Depot tracks at Eighteenth Street in the city, and on those points it overruled all the exceptions and confirmed the master's reports. It differed, however, with the master on the question of the compensation to be paid by the Colorado Company, and sustained exception 11 on that point.

(14) The court then entered a decree, December 31, 1886, finding that the equities were with the intervenors and that they were entitled to the relief prayed for, and fixing the compensation to be paid by the Colorado Company for the use of the right of way and tracks, side-tracks, switches, turn-outs, turn-tables, and other terminal facilities of the Wabash Company between the north line of Forest Park and Eighteenth Street in the City of St. Louis at $2,500 per month. The decree then proceeds as follows:

"And the court doth further find, adjudge, and decree that the expense per annum of maintaining the said right of way and other property pending such joint use thereof, including therein all taxes upon said property, shall be borne by the said Wabash, St. Louis and Pacific Railway Company and the said intervenor, the St. Louis, Kansas City and Colorado Railroad Company, in the proportion that the number of wheels each of said companies shall cause to be passed over the main track, or parts thereof, on said right of way, per annum, bears to the total number of wheels that both of said companies shall cause to be passed

Page 138 U. S. 17

over the same during each year pending the said period of such joint use, and that this expense shall be paid at the expiration of each year. The said right of way and tracks thereon and other terminal facilities shall be maintained and kept in good repair by the Wabash, St. Louis and Pacific Railway Company. And the court doth further order, adjudge, and decree that the running of all trains, engines, or cars of said intervenor, the said St. Louis, Kansas City and Colorado Railroad Company, over said right of way and tracks, and the use of said right of way, road, terminal facilities, and other property specified as aforesaid, shall conform to the rules and regulations now in force and such other reasonable rules and regulations as may hereafter be adopted by the said Wabash, St. Louis and Pacific Railway Company, or its said receivers, to enable said intervenor to fully enjoy the benefits of this decree, and that the trains of said railroad company, intervenor, shall be so regulated as that at lease eight minutes shall, if deemed necessary, intervene between its trains and the trains of said Wabash, St. Louis and Pacific Railway Company at any point between said north line of Forest Park and Eighteenth Street, and that the sole control and regulation of the running of the trains of the said companies shall be, under this decree, in the Wabash, St. Louis and Pacific Railway Company and its receivers, and subject to the further order of this Court. And the court doth further order, adjudge, and decree, that in all respects, subject to the terms of this decree, the said railroad company, intervenor, shall enjoy the equal use and benefit of said right of way, tracks, switches, sidetracks, turn-outs, turn-tables, and other terminal facilities with said Wabash, St. Louis and Pacific Railway Company, or its said receivers, and the said Wabash, St. Louis and Pacific Railway Company and Solon Humphreys and Thomas E. Tutt, as such receivers, and said Central Trust Company of New York and James Cheney, and all persons claiming by, through, or under them, and each of them respectively, and their agents, servants, counselors, and employees, be, and the same are hereby, perpetually enjoined and restrained from in any manner refusing to permit the said intervenor, the said St. Louis, Kansas City

Page 138 U. S. 18

and Colorado Railroad Company, its successors or assigns, and its or their officers, agents, or employees, from using with it or their engines, cars (loaded or empty), the said right of way, tracks, switches, side-tracks, turn-outs, turntables, and other terminal facilities of said Wabash, St. Louis and Pacific Railway Company between the north line of said Forest Park and said Eighteenth Street, on the terms hereinabove set forth in this decree, in and for the transacting of its or their business, and in the operation of its or their road. And the said intervenor, the St. Louis, Kansas City and Colorado Railroad Company, by its officers, agents, and employees, and each of them, is hereby authorized and permitted, with its right of way, road, tracks, and property, engines and cars, loaded or empty, to make connection with said Wabash, St. Louis and Pacific Railway Company at the north line of said Forest Park, and to use the said right of way, tracks, switches, side-tracks, turn-outs, turn-tables, and other terminal facilities of said Wabash, St. Louis and Pacific Railway Company, or anyone claiming by, through, or under it, as to the same, between the north line of said park and Eighteenth Street, on the terms, in the manner, and subject to the regulations, in this decree set forth in and for the transaction of the business, and in operation of the road, of said St. Louis, Kansas City and Colorado Railroad Company, its successors or assigns, and said Solon Humphreys and Thomas E. Tutt, receivers, and all agents, servants, or persons by them engaged, or acting with or for them, said Central Trust Company and James Cheney, said Wabash, St. Louis and Pacific Railway Company, and all persons claiming by, through, or under said last-named company, are hereby restrained and enjoined from in any wise obstructing, preventing, interfering with, or refusing to comply with, the permit and privilege hereby ordered, adjudged, and decreed."

The rules in force upon the Wabash road, and which were adopted by the decree, for the government of the parties in the use of the property, are found, as "Exhibit D," in the printed record.

(15) On the day the decree was entered, James F. Joy, Thomas H. Hubbard, Edgar T. Welles, and O. D. Ashley filed their petition in the cause, reciting the execution of the

Page 138 U. S. 19

Wabash mortgage of June 1, 1880, to the Central Trust Company and Cheney, as trustees, stating that there had been a foreclosure of said mortgage, and a sale of the mortgaged property on the 26th day of April, 1886 at which they had become the purchasers; that the sale to them had been duly confirmed by the court, and proper deeds had been made conveying to them the right of way, railroad tracks, terminal facilities, and other property, the use of which the intervenor was seeking to acquire in this proceeding; that said property was still in the possession of, and being operated by, said receivers; that, as such purchasers, they had an interest in the property and subject matter of the litigation, which they desired to protect by an appeal to the Supreme Court of the United States, and asking that they he made parties defendant, and be allowed an appeal to that court. The court thereupon entered an order on said day reciting the petition and that it appeared to the court that said Joy, Hubbard, Welles, and Ashley were the owners of the premises and right of way theretofore owned by the Wabash Company between the north line of Forest Park and across the park to Eighteenth Street in the City of St. Louis, over which the intervenor was seeking to obtain a right to run its engines and cars, and ordering that said purchasers be made parties defendant in the cause. An appeal to this Court from the foregoing decree was afterwards duly perfected.

Page 138 U. S. 29



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