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
MR. JUSTICE BLATCHFORD, after stating the case as above
reported, delivered the opinion of the Court.
It is contended by the appellants that the circuit court erred
(1) in holding that the covenant on the part of the County Company
to permit other railroads to use its right of way between the park
and the terminus of its line in the city was binding on the Kansas
City Company, and gave to the Colorado Company the right to use the
right of way and the tracks afterwards acquired and constructed by
the Kansas City Company between the park and the city; (2) in
decreeing that the covenant of the County Company, to permit other
railroads to use its right of way between the park and the terminus
of its road in the city, created an equitable easement in the road
between the park and the city, which affected such property in the
hands of Joy and others, as purchasers; (3) in decreeing that such
covenant on the part of the County Company was an agreement
sufficiently definite in terms to be specifically enforced by a
court of equity; (4) in decreeing the specific performance by the
Wabash Company of a continuous duty, requiring the exercise of
skill and personal judgment, as well as the expenditure of money,
and requiring the court to retain perpetual control over the cause,
in order to superintend the execution of the decree and make, from
time to time, such changes in the rules and regulations adopted by
the Wabash Company as the circumstances of the parties and the
shifting contingencies of business and trade should render
necessary; (5) in making a decree broader than the contract, in
that the County Company only agreed, at most, to permit other
companies to use its right of way, while the decree gives the right
to use the right of way and tracks, sidetracks, switches,
turn-outs, turntables, and other terminal facilities of the Wabash
Company; (6) in holding that there was mutuality of equitable
remedy between the parties to the suit, and (7) in holding that the
contract of the County Company was binding on Joy and others, as
purchasers in good faith and without notice, under the mortgage
made by the Wabash Company in 1880.
But we are of opinion that, under the two agreements of
Page 138 U. S. 30
August 11, 1875, and the deed of that date from the County
Company to the Kansas City Company, the Wabash Company, as
successor of the latter company, is bound to permit the Colorado
Company to use the right of way from the north line of Forest Park,
through the park, to the terminus of the Wabash Company's road on
Eighteenth Street, for a fair and equitable compensation.
Forest Park, containing 1,379 acres of land, had been
established as a park for the benefit of the people, and was
intended principally as a driving park. The board of Forest Park
Commissioners had, under the Act of March 25, 1874, the power to
lay off, improve, adorn, govern, manage, and control the use of the
park and the avenues surrounding it. Before the execution of the
tripartite agreement, neither the County Company nor the Kansas
City Company had any railroad to the Union Depot. The County
Company had located its line east and west of the park, and had
purchased the right of way at different points along its line from
the Union Depot to the park, but it had built no railroad, and the
location of its right of way through the park was undetermined at
the time. The Kansas City Company had its depot for freight and
passengers in the northern part of the city, some distance from the
Union Depot. As the Union Depot was at that time the only general
passenger depot in the city, and was reached by most of the
railroads which entered the city, the Kansas City Company
determined to build a branch of its road from Ferguson, about nine
or ten miles from the city, to the Union Depot, and thus avail
itself of better facilities for doing a passenger business, and to
cross the bridge over the Mississippi River with its trains. It is
stated in the agreement of August 11, 1875, between the County
Company and the Kansas City Company that the latter required the
right of way in order to reach the Union Depot. Its branch line
from Ferguson was located through the park. In its efforts to
obtain the right of way through the park, it encountered the County
Company. The board of park commissioners was conferred with by the
two companies in regard to securing a definite right of way for
both of them through the park. This is shown by the testimony
Page 138 U. S. 31
of Mr. McKinley, before referred to. The park commissioners were
willing at that time to grant the use of one right of way through
the park on a certain line, with conditions as to the use of such
right of way by other railroads, so as to protect the park as far
as possible from invasion by other railroads on separate and
independent rights of way. In order to accomplish this result, the
board expended $40,000 in aid of the construction of the railroad
through the park. In view of the deep cut on the line of the Wabash
road just east of the park, it would be difficult for any other
railroad to enter the park from the east on an independent right of
way and at the same time use the right of way of the Kansas City
Company through the park. Hence arose the provision that this right
to use the right of way by other railroads should apply not only to
the "right of way through the park," but also to the right of way
"up to the terminus of its road in the City of St. Louis" -- that
is, the right of way from the park to the Union Depot.
It was under these circumstances that the tripartite agreement
came into existence, and the terms of paragraph 9 of it must be
construed. That paragraph is here repeated:
"Ninth. Said party of the second part shall permit, under such
reasonable regulations and terms as may be agreed upon, other
railroads to use 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."
It is to be construed in connection with paragraph 12 of the
same agreement.
In regard to these two paragraphs, the opinion of the circuit
court says:
"It will be observed that, by the ninth paragraph, the county
road agreed to permit the use of its right of way by other
railroads. Whether a like obligation was assumed by the Kansas road
depends upon the last sentence in the twelfth paragraph, which
purports to grant to the Kansas road the right to occupy and enjoy
the right of way through the park jointly with the county road"
"on the terms of the said contract between them, and under the
same terms and
Page 138 U. S. 32
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."
"It must be conceded that the meaning of this language is not
perfectly clear. It is claimed by the defendants that the words 'as
to improvements, except as to building,' etc., qualify not only the
immediately preceding clause, commencing 'and which are hereby
assumed,' but also the one prior, commencing 'and under the same
terms and conditions,' and therefore that the terms and conditions
as to improvements are those alone cast upon the Kansas road. This
would make the two clauses but a single compound one, qualified by
the following relative clause 'as to improvements,' etc. As against
this it must be observed that grammatically, a relative clause
generally qualifies its immediate antecedent, and therefore, in
this case, would refer simply to that clause which provides for the
assumption by the Kansas road. This natural grammatical
construction is strengthened by the punctuation -- a comma after
the words 'party of the second part' and none after the words
'party of the third part' -- which seems to separate the entire
first clause from the second and its qualifying terms. I know that
the matter of punctuation is never relied upon to defeat the
obvious intent, but when the meaning is doubtful, the punctuation
is certainly a matter tending to throw light upon it. Further,
there are not simply two, but really three antecedent clauses, the
first one being 'the terms of the said contract between them' --
that is, the two railroad companies. Very clearly this qualifying
clause does not refer to that, and therefore it should not be held
to qualify the second unless the obvious intent compels such
construction. It is objected that the clause commencing 'and which
are hereby assumed' is, under this construction, superfluous. I
think not. These improvements called for the expenditure of money,
and the idea seemed to be that the Kansas road should not only hold
its rights upon certain conditions, but that, as to those involving
expenditure of money, it should expressly assume the performance.
There is a manifest difference
Page 138 U. S. 33
between a conveyance subject to a mortgage and a conveyance in
which the grantee assumes the payment of the mortgage. This
distinction evidently dictated the form of expression used."
It appears from paragraph 12 that the Kansas City Company had in
view the failure of the County Company to comply with the
provisions of paragraphs 1 to 8 inclusive of the tripartite
agreement, relating to the construction of the road, among which
was the provision which required the completion of the road within
one year, under the penalty of the forfeiture of all rights under
the agreement. The Kansas City Company guarded against such
contingency by the provision in paragraph 12 that in case the
County Company, its successors or assigns, should forfeit its
rights, privileges, and franchises in, upon, and through the park,
or from any cause should cease to have, maintain, or enjoy the
same, then the Kansas City Company should not also be excluded from
the park, but, with its successors and assigns, should continue to
have, maintain, and enjoy all of said rights, privileges,
immunities, franchises, improvements, and property, on the terms
thereinbefore set forth, continuously and forever. Thereby, in case
of the forfeiture of its rights by the County Company, the Kansas
City Company became possessed of the entire right of way, subject
to the terms of the agreement of August 11, 1875, between the two
companies, and to those of the tripartite agreement of the same
date, and that which, prior to the forfeiture, was held and enjoyed
jointly by the two companies, became the sole property of the
Kansas City Company, its successors and assigns, on the terms of
the said contract between the two companies, and under the same
terms and conditions which were imposed upon the Kansas City
Company. Among the conditions so imposed were those of paragraph 9
of the tripartite agreement. Further, those terms as to
improvements, except as to building a depot and switch in the park,
were assumed by the Kansas City Company. The depot and switch were
to be built by the County Company. The word "improvements" related
to the building of the road, and the erection of what was to be
erected, except the depot and switch. The
Page 138 U. S. 34
reason why the Kansas City Company did not assume the building
of the depot and switch appears from a clause in the agreement of
August 11, 1875, between the two companies, to the effect that the
County Company should have and maintain the passenger depot in the
park, so far as the two companies were concerned, and that the
Kansas City Company should not have the power of stopping any of
its trains in the park. As, however, the latter company would use
the right of way through the park, and what were called the
"improvements," except the depot and switch, the park commissioners
required it to assume the obligations of the County Company in that
regard.
This was the view of the contract taken by the circuit court,
and we think it was correct. It is evidently in accordance with the
intention of the parties to the tripartite agreement. The object of
the park commissioners was to protect the park from the invasion of
more than one railroad track, and to accomplish that result it was
necessary to give to other railroad companies the right to use the
one right of way, and to impose on the Kansas City Company, as well
as the County Company, the obligation to permit other companies to
use such right of way.
Hayes v. Michigan Central Railroad,
111 U. S. 228.
We are also of opinion that 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.
Tulk v. Moxhay, 2
Phillips 774;
Luker v. Dennis, 7 Ch.D. 227;
Bronson v.
Coffin, 108 Mass. 175;
Whitney v. Union Railway Co.,
11 Gray 359, 364;
Parker v. Nightingale, 6 Allen 341, 344;
Van Doren v. Robinson, 16 N.J.Eq. 256;
Kirkpatrick v.
Peshine, 24 N.J.Eq. 206;
Western v. Macdermott, L.R.
2 Ch. 72;
Watertown v. Cowen, 4 Paige 510;
Randall v.
Latham, 36 Conn. 48, 53;
City of Cincinnati v. Lessees
of White, 6 Pet. 431;
Brew v. Van Deman, 6
Heisk. 433;
Winfield v. Henning, 21 N.J.Eq. 188;
Verplanck v. Wright, 23 Wend. 506;
Stockett v.
Howard, 34 Md. 121;
Atlantic Dock Co. v. Leavitt, 54
N.Y. 35.
Page 138 U. S. 35
In the present case, the tripartite agreement is a link in the
chain of title of the mortgagees and of the purchasing committee.
The right of way through the park granted by Griswold to the County
Company, November 3, 1871, was lost by nonuser. The right of way
granted by the park commissioners to the County Company under the
first park act, of March 25, 1872, failed, because that act was
declared unconstitutional in
State v. Leffingwell, 54 Mo.
458. The third line, that established by the tripartite agreement,
was not identical with either of the two prior lines. The park
commissioners therefore granted to the two companies, under the
tripartite agreement, all the right of way which they acquired in
the park. The right of the mortgagees and of the purchasing
committee to use such right of way is based solely upon that
agreement, and, holding under it, they must hold subject to its
terms and conditions, irrespectively of the question of notice.
Whitney v. Union Railway, 11 Gray 359;
Van Doren v.
Robinson, 16 N.J.Eq. 256;
Tulk v. Moxhay, 2 Phil.Ch.
774;
Luker v. Dennis, 7 Ch.D. 227;
Western v.
Macdermott, L.R. 2 Ch. 72. Therefore, the Wabash Company, the
mortgagees, and the purchasing committee must be held to have had
notice of the covenants and conditions of the tripartite agreement
prior to the execution of the mortgage, and are bound by them,
whether the covenants be or be not strictly such as run with the
land.
Nor is the failure to acknowledge the tripartite agreement as a
deed of any importance. There was sufficient to put the purchasers
on inquiry, and to charge them with notice of all the facts which
such an inquiry would have made known. The Wabash Company came into
existence in August, 1879, through the consolidation of the Kansas
City Company with the Wabash Railway Company. This consolidation
took place under statutes, by virtue of which the consolidated
company took all the property, rights, and franchises, and assumed
all the liabilities, of the Kansas City Company. The Wabash
Company, therefore, was not strictly a purchaser from the Kansas
City Company. The consolidation was merely a change of name. If the
Kansas City Company was bound by
Page 138 U. S. 36
the tripartite agreement to grant the use of the right of way to
other railroads on certain terms, the Wabash Company, as
consolidated, was equally bound to do so. The mortgage was executed
in 1880, and the committee purchased in 1886. The tripartite
agreement was recorded in the recorder's office of the City of St.
Louis September 5, 1879, prior to the execution of the mortgage,
and prior to the purchase under it made by the committee.
Bishop v. Schneider, 46 Mo. 472;
Stevens v.
Hampton, 46 Mo. 404;
Digman v. McCollum, 47 Mo.
425.
The tripartite agreement and that between the County Company and
the Kansas City Company and the deed from the County Company to the
Kansas City Company all of them bear date August 11, 1875. The deed
was duly acknowledged, and was recorded August 13, 1875. It is a
link in the chain of title of the mortgagees and the purchasing
committee. It recites that it is made in pursuance of the terms of
a certain contract made and executed between the County Company and
the Kansas City Company and dated August 11, 1875, and is in full
satisfaction of so much of such contract as relates to the
conveyance of certain pieces of land and right of way to the Kansas
City Company. It also contains the following provision:
"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,
together with all and singular the tenements, hereditaments, and
appurtenances thereunto belonging or in any wise appertaining.
"
Page 138 U. S. 37
Thus, this deed refers to the contract of August 11, 1875,
between the County Company and the Kansas City Company, and to the
terms thereof, and the Kansas City Company took its title subject
to the terms and conditions imposed upon the County Company by the
tripartite agreement. This reference to the terms and conditions on
which the right of way mentioned in the deed was granted to the
Kansas City Company put all the parties to the deed, and their
assigns, on inquiry as to the terms of the contract by which such
rights of way were granted, and led up to the provision in the
agreement of August 11, 1875, between the two companies, which
referred to the tripartite agreement in the following language:
"And whereas, under this agreement and a certain agreement
between the parties hereto and the Commissioners of Forest Park of
even date herewith, the party of the second part is about to and
hereby, in consideration of the covenants and agreements of the
party of the first part, hereinafter particularly set forth, and of
the covenants and agreements of said Commissioners of Forest Park
in said agreement with them contained, does covenant and agree to
construct and maintain a railroad bed and road in, upon, and
through said Forest Park, and the tunnel and cut hereinbefore
specified according to certain plans and specifications agreed upon
and according to the terms and conditions of said agreement with
said commissioners, for the joint use of both the parties [of the
first part and of the second part] hereto, their several successors
and assigns."
Being thus chargeable with notice of the contents of the
contract of August 11, 1875, between the County Company and the
Kansas City Company, the mortgagees and the purchasing committee
were chargeable also with notice of the tripartite agreement, to
which it referred, and they purchased subject to the terms on which
the right of way was granted.
Kirkpatrick v. Peshine, 24
N.J.Eq. 206;
Atlantic Dock Co. v. Leavitt, 54 N.Y. 35;
Bishop v. Schneider, 46 Mo. 472;
Stevens v.
Hampton, 46 Mo. 404;
Maupin v. Emmons, 47 Mo. 304;
McCamant v. Patterson, 39 Mo. 100, 110;
Mense v.
McLean, 13 Mo. 298;
Meier v. Blume, 80 Mo. 179,
184.
Page 138 U. S. 38
The covenant in 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 wish to use not only the
right of way through the park, but also that between the park and
the Union Depot.
Whitney v. Union Railway, 11 Gray 359,
364;
Parker v. Nightingale, 6 Allen 341, 344;
Wilkinson v. Clements, L.R. 8 Ch. 96;
Perkins v.
Hadsell, 50 Ill. 216;
Stansbury v. Fringer, 11 Gill
& J. 149;
Cooper v. Pena, 21 Cal. 403;
Union
Pacific Railway v. McAlpine, 129 U. S. 305,
129 U. S. 314;
McMurray v. Moran, 134 U. S. 150.
The two agreements of August 11, 1875, and the deed of that date
from the County Company to the Kansas City Company constituted a
single transaction, relating to the same subject matter, and should
be construed together in such a way as to carry into effect the
intention of the parties, in view of their situation at the time
and of the subject matter of the instruments. Contracts of such a
character are to be construed liberally in favor of the public when
the subject matter concerns the interests of the public.
Parker
v. Great Western Railway, 7 Scott N. R. 835, 870;
Colman
v. Eastern Counties Railway, 10 Beav. 1, 14;
Canal Co. v.
Wheeley, 2 B. & Ad. 792;
Blakemore v. Canal Co.,
1 Myl, & K. 154, 165;
Lee v. Milner, 2 Younge &
Coll. Ex. 611, 618;
Ware v. Canal Co., 28 L.J.Ch.N.S, pt.
1, 153, 157;
Gray v. Railway Co., 4 Railway Cases 240.
The Kansas City Company, under the agreements, completed its
road through the park to the Union Depot in 1876. The agreement
between the County Company and the Kansas City Company provided
that the County Company should pay to the Kansas City Company
one-half of the cost of the construction and maintenance of the
roadbed through the park and the tunnel and the cut within two
years from August 11, 1875, and that if the County Company should
fail or refuse to make payment for sixty days after demand after it
should become due, all the rights, privileges, franchises, powers,
immunities, improvements, and property of the County Company
Page 138 U. S. 39
in, through, or upon Forest Park and in, into, through, over, or
upon the tunnel and cut should become, by virtue of such failure
and refusal, without further process or proceedings, forfeited to
the Kansas City Company, its successors and assigns; that in case
of such forfeiture, no further payments should be made by the
County Company, but the Kansas City Company might enter upon the
sole and absolute possession and enjoyment of all such rights,
privileges, franchises, powers, immunities, improvements, and
property, to the exclusion of the County Company, and that the
latter company should in such case convey by deed to the Kansas
City Company, its successors and assigns, all of such rights,
privileges, franchises, powers, immunities, improvements, and
property. The two years expired in 1877. The County Company, having
paid nothing, forfeited to the Kansas City Company all its interest
in the right of way through the park and through the tunnel and the
cut east of the park.
By the two agreements and the deed, the Kansas City Company
obtained from the County Company an undivided one-half of the right
of way through the park and the other rights of way then owned by
the County Company between the park and the Union Depot, and, by
virtue of the two agreements and the forfeiture, without further
action by either the County Company or the park commissioners, the
Kansas City Company became vested with the title to the whole right
of way through the park, the tunnel, and the cut, and became
substituted for the County Company under the agreements. All the
obligations and conditions imposed upon the County Company became
those of the Kansas City Company except as to building the depot
and the switch in the park, and the latter company became subject
to the conditions which were imposed on the County Company by the
tripartite agreement. That agreement created the easement before
referred to, which covered the tracks through the park and the
tracks east of the park to the Union Depot.
Whitney v. Union
Railway Co., 11 Gray 359, 364;
Parker v. Nightingale,
6 Allen 341, 344.
The permission to other railroad companies to use such tracks
was a concession to the park commissioners, and was
Page 138 U. S. 40
one of the conditions of the grant of the right of way through
the park to the County Company, and the Kansas City Company
obtained the title to, and the exclusive possession of, such right
of way, under the agreement providing for such permission. It would
be inequitable to permit the Kansas City Company or its successor
to continue to use the right of way through the park and at the
same time to deprive the park commissioners or their successor, the
City of St. Louis, as trustees of the public, of the benefit of the
use by other railroad companies of the right of way between the
park and the Union Depot. The park was dedicated to the use of the
people of the City and County of St. Louis, and it was the duty of
their trustees to preserve that use to them for park purposes. In
the view of those trustees, it was necessary for the protection of
the park that other railroad companies should be permitted to use
not only the right of way through the park, but also that between
the park and the Union Depot. In order to obtain the right of way
through the park, the Kansas City Company subjected itself to the
condition imposed by paragraph 9 of the tripartite agreement, and
it is right that that company and its successor should be held to a
strict compliance with its covenant. The appellants, although
enjoying the benefit of the $40,000 expended by the park
commissioners and of the right of way through the park, deny their
liability under the agreement without offering to return to the
grantors the property obtained by virtue of the agreement. Under
such circumstances, these parties cannot be heard to allege that
the agreement was against the policy of the law.
Wiggins Ferry
Co. v. Chicago & Alton Railroad, 73 Mo. 413.
In respect to the point that paragraph 9 of the tripartite
agreement covers the use by other railroad companies not only of
the right of way through the park, but also of the right of way to
the terminus of the County Company's road in the City of St. Louis,
the circuit court very rightly said in its opinion:
"It is argued with great force, however, by counsel for the
respondents that even if the purchasers were charged with notice of
these terms and conditions as attaching to the lands described in
the deed, inasmuch as the Kansas
Page 138 U. S. 41
road obtained a large portion of its right of way between Forest
Park and the Union Depot from other sources, it took these latter
portions free from any burden case upon the lands specifically
conveyed by the County road. 'Can it be,' he says,"
"that a condition in a deed of a few feet of the right of way,
in a long line of three hundred miles, casts a burden on the entire
line, to be assumed by every succeeding purchaser?"
"I might answer this extreme case by a reverse question: can it
be possible that a condition attached to substantially the entire
right of way of this long line of road can be defeated by the fact
that some few feet have been acquired by a deed free from such
condition? But these extreme cases do not constitute the practical
matter before us. Here, the County road had an incomplete right of
way through the park and to the Union Depot. A share of this
incomplete right of way it conveyed to the Kansas road subject to
certain conditions. Can it be that the completion by the Kansas
road of this right of way, by the purchase of intervening and
isolated tracts, destroys the entire value of the conditions?
Looking at this matter in a practical way and from a reasonable
standpoint, I think the answer to this question must be in the
negative."
In
Bronson v. Coffin, 108 Mass. 175, 180, it was said,
the court speaking by Gray, J.:
"An interest in the nature of an easement in the land which the
covenant purports to bind, whether already existing, or created by
the very deed which contains the covenant, constitutes a sufficient
privity of estate to make the burden of a covenant to do certain
acts upon that land, for the support and protection of that
interest, and the beneficial use and enjoyment of the land granted,
run with the land charged. And an obligation, duly expressed, that
the structures upon one parcel of land shall forever be of a
certain character for the benefit of an adjoining parcel is equally
a charge upon the first parcel, whether the obligation is
affirmative or merely restrictive, and whether the affirmative acts
necessary to carry the obligation into effect are to be done by the
owner of the one or the owner of the other."
And it was held by the court, where there was a covenant to make
and
Page 138 U. S. 42
maintain a fence on a railroad, contained in a deed granting to
the road a strip for the right of way, that this covenant was an
encumbrance on all the remaining land of the grantor, and ran with
that land, because the covenant gave the grantee an interest in the
nature of an easement in the adjoining land of the grantor.
See
also Western v. Macdermott, L.R. 2 Ch. 72;
Whitney v.
Union Railway, 11 Gray 359, 364;
Parker v.
Nightingale, 6 Allen 341;
Union Pacific Railroad v.
McAlpine, 129 U. S. 305,
129 U. S. 314;
McMurray v. Moran, 134 U. S. 150.
There can be no doubt of the power of the County Company and the
Kansas City Company under the statutes of Missouri to make the
agreement in question. Gen.Stats. of Missouri of 1866, c. 63, sec.
32, p. 341.
The only right of way through the park and to the Union Depot
claimed by the appellants is that established by the tripartite
agreement. Every other right of way through the park was
surrendered, by that agreement, to the park commissioners, because
that agreement says that the line and grade established by it was
thereby fixed "as the sole and finally established right of way to
which" the County Company was "entitled, by statute or otherwise,
through said park, or any part thereof." Such line and grade were
laid down and described on the plat and profile which were attached
to the tripartite agreement and formed part thereof. The park
commissioners expended about $40,000 in complying with their
engagements under that agreement. At its date, as testified to by
Mr. McKinley, it was feared that the invasion of the park by
railroads would not only affect unfavorably the landscape beauty of
the park, but would also produce great danger to persons visiting
it, and it was a long time before the apprehension was relieved
that horses would be frightened. The consideration for the
expenditure of the $40,000 was the provision of the tripartite
agreement which protected the park and prevented its being defaced
and injured by the construction of other railroads through it. The
confining of such railroads to the use of the single right of way
established was a reasonable precaution.
Hayes v. Michigan
Cent. Railroad, 111 U. S. 228;
Mayor of New York v. Williams, 15 N.Y.
Page 138 U. S. 43
502. Such provision was in the interest of the public safety,
and the park commissioners had the right to exact it.
In case the County Company should forfeit its rights in the
park, the Kansas City Company was to continue to enjoy the right of
way on the terms imposed on the County Company by paragraph 9 of
the tripartite agreement. Such construction of the contract is the
only one consistent with fair dealing and the manifest intention of
the parties. The tripartite agreement is the only muniment of title
under which the appellants now enjoy the right of way. The grant of
the right to other railroads to use such right of way through the
park and to the Union Depot was a grant to the park commissioners,
as trustees for the public, and is to be construed liberally.
Paragraph 9 is imperative. It provides that the County Company
"shall permit" other railroads to use its right of way. This is to
be done "under such reasonable regulations and terms as may be
agreed upon," and "upon such terms, and for such fair and equitable
compensation to be paid" to the County Company "therefor, as may be
agreed upon by such companies." Not only are the regulations and
terms to be reasonable, but the compensation is to be fair and
equitable. Although the statement is that the compensation is to be
such "as may be agreed upon by such companies," yet the statement
that it is to be "fair and equitable" plainly brings in the element
of its determination by a court of equity. If the parties agree
upon it, very well; but if they do not, still the right of way is
to be enjoyed upon making compensation, and the only way to
ascertain what is a "fair and equitable" compensation therefor is
to determine it by a court of equity. Such is, in substance, the
agreement of the parties. The provision cannot be construed as
meaning that if the parties do not agree, there is to be no
compensation, and that because there can in that event be no
compensation, there is to be no enjoyment of the right of way. In
this view, it cannot be said that the court is making an agreement
for the parties which they did not make themselves.
Emery v.
Wase, 8 Ves. 505;
Milnes v. Gery, 14 Ves. 399;
Gregory v. Mighell, 18 Ves. 328;
City of Providence v.
St. John's Lodge, 2 R.I. 46;
Dike v. Greene, 4 R.I.
285.
Page 138 U. S. 44
On the question whether paragraph 9 of the tripartite agreement
covers not merely the right of way through the park and up to the
terminus of the road in the City of St. Louis, but also the tracks
for that extent, the opinion of the circuit court very properly
says:
"The language of the ninth paragraph under which, as before
noticed, intervenors must claim, is that the party of the second
part shall permit other railroads to use its 'right of way.' Now
the term 'right of way' has a two-fold signification. It sometimes
is used to describe a right belonging to a party, a right of
passage over any tract, and it is also used to describe that strip
of land which railroad companies take upon which to construct their
roadbed. Obviously in this paragraph it is used in the latter
sense. Through both of these contracts, the terms 'right of way,'
'track,' and 'roadbed' frequently appear, and in all cases the term
'right of way' is used as descriptive of the strip above referred
to. Notably, in the fifth paragraph is the distinction between the
'right of way' and the 'track' disclosed, in which it is provided
that the depot shall be wholly outside of the right of way, but
immediately adjoining the track. Now the right of way through the
park as given by the Griswold deed was 40 feet, as fixed by the
contract with the Forest Park Commissioners was 70 feet, and by
this present contract, 42 feet. So the County road conveyed to the
Kansas road, outside of the park, a strip either 30 or 28 feet in
width for its right of way. My thought at first was that the
intervenors could only claim a right to use so much of this right
of way as was not in fact occupied by the track of the Wabash, and
that all that was intended by this ninth paragraph was to permit
other railroad companies to occupy and use so much of the Kansas
road's right of way as it did not itself occupy and use; but after
reflection on the arguments of counsel, I have been led to the
conviction that this was too narrow a construction, and was not the
real intent of the parties. The master in his report shows that the
entire right of way is occupied by tracks and sidings, so that
there is no room for another and independent track, and as there is
nothing to show that this occupation has not been made in good
faith and to supply
Page 138 U. S. 45
the needs of the Wabash company, if my first interpretation had
been correct, the intervenors would plainly be without any rights.
I think, however, the true construction is this: that the Kansas
Company was to have the first right -- a right not limited to its
necessities, but as broad as its convenience. Subject, and only
subject, to such prior right, other companies were to have the use
of the right of way, and if the respondent's business compelled the
occupation by its tracks or sidings of the entire right of way, but
the convenience of its business would permit the use of those
tracks and sidings by another road, then such other road would be
entitled to the use of both the right of way and the tracks and
sidings. This construction is, I think, in accordance with the
obvious intent of the parties, who were contracting for general
rights, and not fixing the specific details."
The evidence shows that the entire right of way is occupied with
tracks and sidings, so that there is no room for another and
independent track, and that the entrance into the Union Depot over
the tracks of the Wabash Company is the only practical route for
the road of the Colorado Company to that depot. As the Kansas City
Company had the right to cover its right of way with main and side
tracks, so that there should be no room on such right of way for
the tracks of another railroad, it would be in its power to defeat
the intent of the agreement if the right of way should be held not
to include the tracks. Moreover, as the County Company and the
Kansas City Company were tenants in common of the right of way
through the park and to the east end of the cut, each company had
the right to use the whole of the right of way, subject to the
right of the other company to use the whole of it. Hence, the grant
to other roads of the privilege of using the right of way applied
to the whole of such right of way through the park, and not to a
particular part of it. The track cannot be separated from the right
of way, the right of way being the principal thing, and the track
merely an incident. A right of way is of no practical use to a
railroad without a superstructure and rails. The track is a
necessary incident to the enjoyment of the right of way. The record
shows that the railroad
Page 138 U. S. 46
of the Colorado Company is of the same gauge as that of the
Wabash Company, and that it is entirely practicable for the
Colorado Company to use the tracks of the Wabash Company from the
north line of the park to the Union Depot, subject to the
reasonable rules and regulations of the Wabash Company.
The appellants having denied all right of the Colorado Company
under the tripartite agreement, it became necessary for the
intervenors to come into a court of equity, and the court, having
taken cognizance rightfully of the subject matter in controversy,
has the power to settle not only the right, but also the amount of
compensation. The action of the circuit court was, in effect, to
enforce the specific performance of the agreement. The offer by the
Colorado Company, in its bill, to pay a fair and equitable
compensation, with its prayer to have such compensation determined
by the court, brought the matter within the cognizance of the
court, the other party having substantially agreed, by paragraph 9
of the tripartite agreement, that the compensation should be
determined by a court of equity. The prayer for an injunction to
restrain the Wabash Company and its receiver from refusing to
permit the Colorado Company to use the right of way of the Wabash
Company from the north line of the park to Eighteenth Street is a
prayer for all that is necessary to secure practically the specific
performance of the agreement.
Dinham v. Bradford, L.R. 5
Ch. 519;
Tillett v. Charing Cross Bridge Co., 26 Beav.
419;
Raphael v. Thames Valley Railway, L.R. 2 Eq. 37;
Tscheider v. Biddle, 4 Dillon 55;
Biddle v.
Ramsey, 52 Mo. 153;
Arnot v. Alexander, 44 Mo. 27;
Hug v. Van Burkleo, 58 Mo. 202;
Gregory v.
Mighell, 18 Ves. 328.
The right to use the right of way is a continuing right. If the
remedy were to be at law, repeated actions for damages would be
necessary. The remedy at law would be wholly inadequate. It would
not secure directly the enforcement of the provision of paragraph 9
of the tripartite agreement or the use of the right of way by the
Colorado Company. It would be neither plain nor complete, nor would
it be a reasonable substitute for the remedy in equity by the
injunction asked for.
Page 138 U. S. 47
The appellants rely largely upon cases of the character of that
of
Marble Co. v.
Ripley, 10 Wall. 339, where this Court refused to
enforce the specific performance of a personal contract to deliver
from a quarry marble of certain kinds, and in blocks of a specified
kind, holding that, as the duties required of the owners of the
marble quarry were continuous, and the agreement was one for a
perpetual supply of marble, the court could make no decree which
would end the controversy, and the case would have to remain in the
court forever, with the liability on the part of the court to be
called upon, to the end of time, to determine not only whether the
prescribed quantity of marble had been delivered, but whether every
block was from the right place and was sound and of suitable size
or shape or proportion, and it was held that it was impracticable
for the court to superintend the execution of such a decree.
In the present case, it is urged that the court will be called
upon to determine from time to time what are reasonable regulations
to be made by the Wabash Company for the running of trains upon its
tracks by the Colorado Company. But this is no more than a court of
equity is called upon to do whenever it takes charge of the running
of a railroad by means of a receiver. Irrespectively of this, the
decree is complete in itself, and disposes of the controversy, and
it is not unusual for a court of equity to take supplemental
proceedings to carry out its decree and make it effective under
altered circumstances.
Considerations of the interests of the public are held to be
controlling upon a court of equity, when a public means of
transportation such as a railroad comes into the possession and
under the dominion of the court. These considerations have been
recognized and applied by this Court in several cases.
Barton
v. Barbour, 104 U. S. 126;
Miltenberger v. Logansport Railway, 106 U.
S. 286,
106 U. S.
311-312;
Union Trust Co. v. Illinois Midland
Railway, 117 U. S. 434,
117 U. S.
458.
The circuit court having adopted the rate of compensation
insisted upon by the appellants and the Colorado Company not having
taken an appeal, the question of the rate of compensation
Page 138 U. S. 48
is concluded between the parties. So also is the question that
the rules and regulations for the running of the trains of the
Colorado Company are to be those prescribed by the Wabash Company
and its successors.
In view of the testimony as to the use by agreement of the
tracks of one railroad company by the engines and cars of another,
the practical difficulties insisted upon of carrying out the
regulations laid down in the decree of the circuit court amount to
very little, if anything. That these regulations are practical is
shown by the agreement of August 11, 1875, between the County
Company and the Kansas City Company, in that provision thereof
which is as follows, and which was adopted to a certain extent by
the circuit court in its decree:
"It is agreed and covenanted that to accommodate the running
arrangements of the party of the second part, said party of the
second part shall have the absolute and sole control of the
running, starting, and regulating of the timetables of and for its
own trains, and it is further agreed and covenanted that no train,
locomotive, car, or other conveyance of the party of the first
part, its successors or assigns, shall be allowed or attempted to
be started or run within eight (8) minutes of the time fixed or
stated for the starting, coming in, or running of the train or
trains of the party of the second part, its successors or assigns,
and there shall be twenty minutes' time between the starting and
coming in of the trains of the party of the second part, and this
matter as to said specified times shall be under the sole control
and regulation of the party of the second part."
It is to be noted, however, that the agreement referred to gave
to the Kansas City Company the control only of its own trains,
while the decree gives to the Wabash Company the control of all the
trains to be run over its tracks, with the proviso that the trains
of the Colorado Company shall not be started or run within eight
minutes of the time fixed for the starting, coming in, or running
of the trains of the Wabash Company. The latter company is required
only to make reasonable rules and regulations for the running of
the trains of the Colorado Company. The Wabash Company is to fix
the timetables, and the trains of the Colorado Company
Page 138 U. S. 49
are to be operated on the tracks of the Wabash Company, subject
to the rules and regulations of the latter company, so long as a
train of the former company occupies the tracks of the latter
company.
It is objected that the details of the manner of the use of the
right of way are not set forth in paragraph 9 of the tripartite
agreement, and that therefore a court of equity will not decree a
specific performance. But viewing the two agreements of August 11,
1875, as a single contract, the details, as to the manner of use of
the right of way, are sufficiently furnished by agreement of the
parties, for it is provided by the agreement of August 11, 1875,
between the County Company and the Kansas City Company not only
that the latter company shall have the absolute and sole control of
the starting, running, and regulating of the timetables of and for
its own trains, but also that the matter of the relative times of
the starting, coming in, and running of the trains of the County
Company and of those of the Kansas City Company shall be under the
sole control and regulation of the latter company, its successors,
and assigns.
The case of
Texas & Pacific Railway Co. v.
Marshall, 136 U. S. 393, is
much relied upon by the appellants, but the principle of that case
does not apply to the present one. There, the Court held that if
the railroad company was under a contract with the City of Marshall
to keep there its principal office of business, and its main
machine shops and car works, it was much more consonant to justice
that the injury suffered by the city should be compensated by a
single judgment in an action at law, that there was no substantial
difficulty in ascertaining such compensation, and that therefore
the city had a complete remedy at law. But in the present case, the
remedy in damages by an action at law would be entirely inadequate,
and nothing short of the interposition of a court of equity would
provide for the exigencies of the situation.
See also Wilson v.
Northampton &c. Railway Co., L.R. 9 Ch. 279.
The decree of the circuit court is so framed as to execute
itself. It finds that the rules and regulations now in force for
the running of trains over the right of way and tracks of the
Page 138 U. S. 50
Wabash Company, and which are set forth in the record, are
reasonable rules and regulations. So long as they are undisturbed,
there is no occasion for the action or interposition of the
court.
The fact that the railroads which are to be allowed, under
paragraph 9 of the tripartite agreement, to use the right of way
through the park and up to the terminus in the City of St. Louis
are not named in that paragraph is of no importance.
Wolverhampton Railway Co. v. London & Northwestern
Railway, L.R. 16 Eq. 433;
Express Cases, 117 U. S.
1;
Railway Co. v. Alling, 99 U. S.
463.
Railroads are common carriers, and owe duties to the public. The
rights of the public in respect to these great highways of
communication should be fostered by the courts, and it is one of
the most useful functions of a court of equity that its methods of
procedure are capable of being made such as to accommodate
themselves to the development of the interests of the public, in
the progress of trade and traffic, by new methods of intercourse
and transportation. The present case is a striking illustration.
Here is a great public park, one of the lungs of an important city,
which, in order to maintain its usefulness as a park, must be as
free as possible from being serrated by railroads, and yet the
interests of the public demand that it shall be crossed by a
railroad. But the evil consequences of such crossing are to be
reduced to a minimum by having a single right of way, and a single
set of tracks, to be used by all the railroads which desire to
cross the park. These two antagonisms must be reconciled, and that
can be done only by the interposition of a court of equity, which
thus will be exercising one of its most beneficent functions.
As to the objection that there is no mutuality in the contract,
and therefore it cannot be enforced, the circuit court says in its
opinion:
"As to the objection on the ground of the want of mutuality in
the contract, I think it of little force. The respondent has been
paid for the privilege that is now claimed. The consideration, as I
have heretofore shown, was ample, and, when a party has received
payment for a privilege, I do not think it can resist the
enforcement of that privilege
Page 138 U. S. 51
on the mere ground that it cannot compel the other party to
continue in its enjoyment."
We concur in this view. Under the tripartite agreement, the
right of way through the park was obtained by the Kansas City
Company, and, in consideration of the covenants contained in
paragraph 9 and other paragraphs of that agreement, $40,000 were
expended by the park commissioners in aid of the construction of
the railroad through the park, upon the right of way granted.
Things were to be done by each party for valuable considerations to
be paid by one to the other. The park commissioners complied in all
respects with the agreement. Although the one easement was granted
in consideration of the other, the appellants refused to permit the
enjoyment of the easement which they granted. The want of mutuality
is urged with the appellants are called upon to comply with the
covenant which is valuable to the City of St. Louis, and the public
whom that city represents. Such want of mutuality is alleged to
consist in the inability of the appellants to prevent other
railroads which may use the right of way from discontinuing such
use, and in the fact that the contract did not specify the period
during which the other railroads should be required to use the
right of way. But we think that there is no such want of mutuality
as should interfere with the enforcement of the contract.
It is insisted that the County Company had no power to bind
itself to grant the use of this right of way east of the park. But
the appellants do not occupy a position to insist upon that
objection, so long as they themselves use the right of way which
was granted, and enjoy the benefit of the money which the park
commissioners expended.
The City of St. Louis is, in the present case, not merely a
nominal party, but is charged with the duty of protecting the park,
and of preserving and fostering the commerce of the city. Both of
those objects are clearly set forth in the tripartite agreement
executed by the park commissioners, of whom the City of St. Louis
is the successor, and the considerations thus arising are
legitimate ones in a court of equity, the case being founded upon
the tripartite agreement.
Decree affirmed.
