Jurisdiction in case of an intervention is determined by that of
the main case, and where the original foreclosure case was based
solely upon diverse citizenship, an appeal from the judgment of the
circuit court of appeals on a petition to enforce rights granted by
a decree in an intervention in such foreclosure suit does not lie
to this Court.
Where the circuit court of appeals remands a suit to the Circuit
Court with instructions to enter a decree, the Circuit Court
cannot,
Page 217 U. S. 248
without permission from the circuit court of appeals, introduce
new questions into the litigation, and the unwarranted introduction
of new questions cannot be made the basis of jurisdiction. The mere
construction of a decree involves no challenge of its validity.
It is proper for this Court to grant certiorari where the
questions involve the construction of a prior decree of a United
States Circuit Court granting rights of use of railroad tracks and
terminal facilities in a great city, and where not only the private
interests of the railroad companies and of the shippers, but also
the greater interests of the public, require such rights to be
settled.
Where a decree gives to another company the equal use and
benefit of the right of way of a railroad company in a terminal
city on a basis of compensation and apportionment of expenses, with
provision for modification in case of unexpected changes, it will
be construed as applying to the terminal facilities and the
connections with industrial establishments as the same naturally
increase in a growing city, and not to the mere right of way as it
existed when the decree was entered, and the Court has power to
provide for the use of such increased facilities on a
proportionately increased rental based on the increased
valuation.
152 F. 849 modified.
The facts, which involve the construction of the decree of the
circuit court in 29 F. 546, as affirmed by this Court in the case
of
Joy v. St. Louis, 138 U. S. 1, are
stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court,
after reading the following memorandum:
This opinion was prepared by our Brother Brewer, and had been
approved before his lamented death. It was then recirculated, and
is adopted as the opinion of the Court.
On January 6, 1886, there was entered in the Circuit Court
Page 217 U. S. 249
of the United States for the Eastern District of Missouri a
decree of foreclosure and sale of the Wabash, St. Louis &
Pacific Railway Company, hereinafter called the Wabash Company. In
that suit, before the execution of the deeds to the purchasing
committee, a railway corporation known as the St. Louis, Kansas
City & Colorado Railroad Company (hereinafter called the
Colorado Company) and the City of St. Louis intervened to compel
the Wabash Company to give to the Colorado Company the use of its
tracks and a right of entrance over them to the Union depot of that
city. On that intervention, a decree was entered finding the
equities in favor of the interveners and granting the Colorado
Company the use of the tracks and right of way. 29 F. 546. On
appeal to this Court, the decree of the circuit court on the
intervention was, on January 19, 1891, sustained.
Joy v. St.
Louis, 138 U. S. 1.
A dispute having arisen as to the rights granted by that decree,
a petition was filed at the March term, 1902, of the circuit court
in the original foreclosure case to enforce those rights as the
Colorado Company claimed they existed. A large amount of testimony
was taken upon this application, and a decree entered April 2,
1906. Thereupon an appeal was taken to the Circuit Court of Appeals
for the Eighth Circuit, which, on April 3, 1907, reversed the
decree and remanded the case "with directions to enter a decree not
inconsistent with the views" expressed in the opinion of the court.
152 F. 849. The case went back to the circuit court, and, after an
amendment to the petition, which was allowed by the court, a decree
was entered in obedience to the mandate, from which decree an
appeal was again taken to the circuit court of appeals, and also to
this Court. On the appeal to the circuit court of appeals, the
record was filed in that court, and thereupon an application for a
certiorari was made to this Court, so that two cases are before us
with records precisely alike, one the appeal from the circuit court
directly to this Court (being case No. 57) and the other the
petition for a certiorari to the
Page 217 U. S. 250
court of appeals (being case No. 301). [This petition was filed
and presented to the Court November 30, 1908, and on December 7,
1908, consideration of the petition was postponed to be heard with
No. 57.]
The Wabash Company has filed a motion to dismiss No. 57, the
case appealed directly to this Court. The jurisdiction of the
original foreclosure suit was based solely upon diverse
citizenship, and it has been repeatedly decided that the
jurisdiction in the case of an intervention is determined by that
of the main cause.
Rouse v. Letcher, 156 U. S.
47;
Gregory v. Van Ee, 160 U.
S. 643;
Carey v. Railway Company, 161 U.
S. 115;
Rouse v. Hornsby, 161 U.
S. 588;
Pope v. Railway Company, 173 U.
S. 573.
If this be true in respect to an intervention,
a
fortiori must it be true in respect to a petition to enforce
rights granted by the decree in the intervention. Nor is this rule
changed by the fact that, when this case went back from the circuit
court of appeals to the circuit court, the latter court authorized
an amendment to the petition, alleging that the decree ordered by
the court of appeals failed to give full faith and credit to the
original decree in the intervention proceedings, for, as said in
Pope v. Railway Company, supra, (p.
173 U. S.
578):
"And this is true although another ground of jurisdiction might
be developed in the course of the proceedings, as it must appear at
the outset that the suit is one of that character of which the
circuit court could properly take cognizance at the time its
jurisdiction is invoked.
Colorado Central Mining Company v.
Turck, 150 U. S. 138;
In re
Jones, 164 U. S. 691,
164 U. S.
693;
Third St. and Suburban Railway Company v.
Lewis, 173 U. S. 457."
Further, the power of the circuit court was limited to the entry
of a decree as ordered by the court of appeals, and it could not
introduce new questions into the litigation without the permission
of that court.
Ex Parte Dubuque & Pacific
Railroad, 1 Wall. 69;
In re Sanford Fork &
Tool Company, 160 U. S. 247.
Still further, the mere construction of a decree involves
Page 217 U. S. 251
no challenge of its validity.
Smithsonian Institution v. St.
John, 214 U. S. 19,
214 U. S. 29,
and cases cited in the opinion.
The motion to dismiss No. 57 must therefore be sustained with
costs.
With reference to the application for a certiorari, the power of
this Court cannot be doubted. As said in
Forsyth v.
Hammond, 166 U. S. 506,
166 U. S.
514:
"We reaffirm in this case the propositions heretofore announced
-- to-wit, that the power of this Court in certiorari extends to
every case pending in the circuit courts of appeal, and may be
exercised at any time during such pendency, provided the case is
one which, but for this provision of the statute, would be finally
determined in that court."
On the appeal to the circuit court of appeals, the case was
there pending for consideration and decree, and as, for reasons
heretofore stated, an appeal to this Court would not lie, the case
can be brought here by certiorari.
The question, then, is whether the writ of certiorari ought to
be granted. That question involves the construction of a prior
decree of a United States circuit court, affirmed by this Court. It
is not a question of the payment of money, but of the extent of the
use belonging to one railroad company in the tracks, right of way,
and terminal facilities of another, as well as the rights of access
by the one company to industries established along the line of the
other. This, in view of the increasing number of industries in a
great and growing city like St. Louis, is of constantly enlarging
importance, and ought, so far as possible, to be settled. It seems
to us that both the private interests of the railroad companies and
of the separate industries and the greater interests of the public
call for the granting of the writ of certiorari, and it is
therefore so ordered.
This brings before us the original decree on the intervention.
That decree, and the facts upon which the original controversy
arose, as well as those upon which the present dispute rests, will
be found fully stated in 29 F. 546,
Joy v. St.
Louis,
Page 217 U. S. 252
138 U. S. 1, and 81
C.C.A. 643,
supra, need not be repeated. It is sufficient
to say that the decree was founded upon contracts to which the
railroad companies, or their predecessors, were parties, by which
the Wabash Company agreed to
"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 provided that the Colorado Company should pay $2,500 a
month
"for the use of the right of way, and tracks, side tracks,
switches, turn-outs, turntables, and other terminal facilities of
the said Wabash, St. Louis & Pacific Railway at and between the
north line of Forest Park and Eighteenth Street in the City of St.
Louis,"
and that of these properties it should "enjoy the equal use and
benefit." It apportioned the expense of maintaining on a wheelage
basis this right of way and other property during such joint
use.
Two principal questions are presented, each having reference to
the existence of the rights granted by the intervention decree. The
eastern line of Forest Park is about three miles west of Eighteenth
Street, and, at the time the decree was entered, the Wabash Company
owned a strip of land varying in width from twenty-eight to over
two hundred feet, and extending from Eighteenth Street to the east
line of the park, and also had an easement for the passage of its
trains and engines through the park upon a strip of land forty-two
feet wide from the east to the north side thereof. The ground owned
by the Wabash is not, as stated, of equal width, portions having
been obtained by deeds from different owners, some being only
twenty-eight feet in width and others extending quite a distance,
so as to furnish room for roundhouses and other terminal
facilities. Now it is contended that the only effect of this decree
was to give to the Colorado Company the right to use the two
continuous tracks from the north line of Forest
Page 217 U. S. 253
Park into the Union Station, while on the other hand it is
contended that it gave to the Colorado Company the equal use and
benefit of the entire ground owned by the Wabash and used for its
terminal facilities. Both the circuit court and the circuit court
of appeals sustained the latter construction, and with that
conclusion we concur. The terminal facilities, and not simply a
right of way over the tracks of the Wabash running to the Union
Station, were granted by the decree. As said by Circuit Judge
Sanborn, delivering the opinion of the court of appeals (p.
646):
"The ordinary signification of the term 'right of way,' when
used to describe land which a railroad corporation owns or is
entitled to use for railroad purposes, is the entire strip or tract
it owns or is entitled to use for this purpose, and not any
specific or limited part thereof upon which its main track or other
specified improvements are located.
Joy v. St. Louis,
138 U. S.
1,
138 U. S. 44-46;
Territory
of New Mexico v. United States Trust Co., 172 U. S.
171,
172 U. S. 181-182,
174 U. S. 174 U.S. 545,
174 U. S. 546;
Chicago
& Alton R. Co. v. People, 98 Ill. 350, 356, 357;
Lake
Erie & W. R. Co. v. Middlecoff, 150 Ill. 27;
Pfaff v.
Terre Haute & I. R. Co., 108 Ind. 144, 148."
"To one ignorant of the origin and history of the rights of the
contending parties, and unaware of the persuasive arguments of
counsel, the reading of this decree would suggest, no doubt, that
it granted the joint use of the entire strip owned by the Wabash
Company, and of all the railroad facilities thereon between the
east line of the park and Eighteenth Street. Upon its face, there
is no ambiguity in its terms. They suggest no limitation or
exception, and when the terms of a decree are plain and clear,
their ordinary meaning and effect may not be lawfully contracted or
extended unless it appears with reasonable certainty that such was
the purpose of the court, for the legal presumption is that the
judge carefully and thoughtfully expressed therein his deliberate
intention. The Wabash Company therefore assumed no light burden
when it essayed to
Page 217 U. S. 254
prove that the court intended by this decree to grant to the
Colorado Company the joint use of a strip only thirty feet in width
out of the wider strip the Wabash Company owned between the east
line of the park and Eighteenth Street."
The other matter involves the question of the right of access to
industrial establishments which have been built up near to the line
of the Wabash road. As might be expected in a growing city like St.
Louis, there are now many such establishments, access to which has
been obtained by the construction of tracks connecting them with
the main tracks of the railway. The use of these connecting tracks,
which were constructed under different arrangements with the
various establishments, is claimed by the intervener, thus making
itself a close and active competitor with the Wabash Company for
their transportation business.
The general conclusion of the court of appeals is stated in
these words (p. 657):
"The conclusion is that the Colorado Company is entitled to
enjoy the joint and equal use of the entire strip of land between
the east line of the park and Eighteenth Street, which the Wabash
owned or had acquired the right to use when the decree of 1886 was
rendered, and of the tracks, side tracks, turn-outs, turntables,
and terminal facilities now thereon. But it is not entitled to the
use under that decree of any of the property, industrial or railway
facilities of the Wabash Company beyond the limits of that strip.
Union Pacific R. Co v. Mason City & Ft. Dodge R. Co.,
199 U. S.
171."
From the latter part of this conclusion, Circuit Judge Hook
dissented, and that presents the question now to be considered. We
are of opinion that the circuit court of appeals erred, and that
the views of Judge Hook are correct. That the matter was considered
by the circuit court at the time of the original decree is evident
from the opinion of the circuit judge, in which it was said (29 F.
559):
"The final matter is that of compensation. In this, I think
Page 217 U. S. 255
the master erred. He fixed the value of the right of way at a
million of dollars, and reported that, in his judgment, the share
of the interest on this value and in the expenses of keeping up the
track, which the intervener company should pay, should be fixed
upon a wheelage basis. So far as respects the mere matter of
keeping up the track, I see no reason to doubt the justice of the
rule fixed by the master; but in regard to the interest on the
value, I think the intervener should pay one-half of that, and for
these reasons: it is a familiar fact that, in a large city like St.
Louis, along the track of an important railroad, within the city
limits, are built large manufacturing establishments, warehouses,
and other buildings for the convenient transaction of business
between the carrier, on the one hand, and the manufacturer and the
merchant, on the other. Another road coming over the same track not
only uses the property, of great value, which the company owner has
in the first instance paid for, but also shares in the benefit of
access to all these manufacturies, warehouses, etc. It thus places
itself in competition with the original company for this valuable
business. Such competition may operate to diminish the business of
the original company, or compel it to lower its rates to preserve
the business. In either way, it operates to the serious detriment
of the original company. The new company comes in as an equal
competitor. It shares in all the benefits of this business, and it
may share equally. Under those circumstances, it seems to me no
more than fair that a new company, which crowds itself into an
equal access to such benefits and such privileges, should pay an
equal share of the interest on the value of the property. Hence, I
shall sustain the objections of the respondent to the report of the
master so far as concerns the amount of compensation, and I think
that the intervener company must pay one-half the interest on the
value, and its share of the cost of keeping up the track,
determined upon a wheelage basis. In other respects, the report of
the master will be confirmed. "
Page 217 U. S. 256
That is an interpretation of the language of the intervention
decree giving the use of the right of way, side tracks, switches,
turnouts, turntables, and other terminal facilities. It is
doubtless true that a connection with these industrial
establishments has become a matter of far greater importance than
at the time of the decree. If it be said that this has cast an
unexpected burden upon the Wabash, it must also be remembered that
provision was made for such unexpected changes. As said in the
opinion (p. 558):
"An act of the legislature might be passed giving to one company
the right to use the tracks of another and prescribing all the
terms and conditions -- the details for the use. I take it, an act
of the legislature would also be valid which simply declared that
one company should have the right to use the tracks of another upon
such terms and conditions as the parties might agree upon, or
should be prescribed by the courts, and if such a legislative act
would have to be adjudged valid and complete, I see no satisfactory
reason why courts may not also hold sufficient and valid a mere
contract for the right, and, determining the right, also settle and
prescribe the terms of the use. It is true that such a decree
cannot be executed by the performance of a single act. It is
continuous in its operation. It requires the constant exercise of
judgment and skill by the officers of the corporation defendant,
and therefore, in a qualified sense, it may be true that the case
never is ended, but remains a permanent case in the court,
performance of whose decree may be the subject of repeated inquiry
by proceedings in the nature of contempt. It is also true that, in
the changing conditions of business, the details of the use may
require change. The time may come when the respondent's business
may demand the entire use of its tracks, and the intervener's right
wholly cease. But other decrees are subject to modification and
change, as in decrees for alimony. The courts are not infrequently
called to modify them by reason of the changed condition of the
parties thereto. So, when a decree passes in a case of this kind,
it
Page 217 U. S. 257
remains as a permanent determination of the respective rights of
the parties, subject only to the further right of either party to
apply for a modification upon any changed condition of affairs,
and, so far as any matter of supervision of the personal skill and
judgment of the officers of the respondent corporation, the
contract, in terms, provides that the regulation of the running of
trains shall be subject to the control of the officers of the
respondent."
See also the opinion of this Court in
138 U. S. 138 U.S.
1,
138 U. S. 47.
The decree of the Circuit Court of December 20, 1907, is
therefore modified in accordance with the views we have expressed
as to terminal facilities in connection with the industrial
establishments now existing near the right of way of the Wabash
Company. If that company shall desire, it may apply for a valuation
of the additional properties of which the equal use and enjoyment
is given to the intervener, and, upon that valuation, the same
percent shall be paid by the intervener. The costs, except so far
as they have been already taxed, shall be charged against the
respondents.