Southern Railway Co. v. Mathew-McDonald Lumber Co. , 103 Miss. 74 ( 1912 )

Cook, J.,

delivered the opinion of the court.

Appellee instituted suit against appellant Railway Company for its failure and refusal to furnish cars to, and to receive freight from, appellee at Mullins Switch,, located on the line of said Railway Company near Steens,. Miss. The switch, or spur, is about three hundred and sixty feet long, and debouches from the main line-of the railway. It seems that this spur was built on the; right of way of the Railway Company, and was constructed at the instance and request of the Interstate Lumber Company, and a contract was made between the Railway Company and the Interstate Lumber Company, which read in connection with a letetr of the vice president of the Railway Company, dated March 6th, 1908, and addressed to A. E. Swanson, secretary and treasurer of' the Interstate Company, gave joint rights to the Railway Company and the Interstate Company to use the spur. In other words, the letter relates to the construction of the spur, and the contract relates to the privilege accorded to the Lumber Company to run its trains over the main line of the' Railway Company, and the letter refers to the contract, for the purpose of making the rules governing the operation of the Lumber Company’s trians on the main line applicable to their trains operated on the spur. About a year after this spur and switch were built, appellee bought large tracts of timber adjoining and contiguous to Mullins Switch, and proceeded to locate a sawmill near-by, for the purpose of converting the timber into lumber for shipment at Mullins Switch. The machinery for the plant was shipped over appellant’s lines arid placed on this switch for unloading, and it seems that some other person’s freight was placed on the switch for unloading. When appellee desired ears for the lumber, it applied to the common carrier, and after a considerable delay it was advised by the carrier that the spur on which this switch was located was a private spur, belonging to and under the control of the Interstate Lumber Company, and that the Railway Company could not furnish the ears without the consent of the Interstate Company, and that the Interstate Company refused to give its consent. It is shown by the evidence that the agent of the appellee, who induced the railway to place the loaded cars of machinery on Mullins Switch, had knowledge of the original contract between the Railway Company and the Interstate Company.

It is manifest that the spur or switch was primarily for the benefit of the Interstate Company, and, had it been built entirely on the land of that company, quite a different question would be presented for solution; but it appears that the entire switch track was over the land and on the right of way of the Railway Company. It seems that the Interstate Company was not using the switch at the time of the alleged damage to plaintiff below, and had not put it to use for some time prior to the refusal of the Railway Company to furnish ears to palintiff.

Our construction of the agreement between the Railway Company and the Interstate Lumber Company leads us to the conclusion that the Interstate Company was granted no special privileges on or private control of the switch, but it did get the special privilege to operate its own trains over the main line of the railway; and reading the letter of the Railway Company in connection with the trackage agreement (and it is made a part of same) we can perceive nothing authorizing the assumption of the Interstate Company to dictate who should, or who should not, take advantage of the facilities provided by the switch track. Indeed, it is exceedingly doubtful whether the Railway Company had the power to make a contract with one shipper granting the extraordinary power claimed by the Interstate Company, and which the railway concedes in this litigation, whereby the control of a switch track "on the railway’s right of way is conferred upon a private corporation. Such was not the contract, and the interpretation put upon the real contract is strained, and the stress of circumstances must have suggested the construction.

The probable consequences of a contract sought to be established by construction is exemplified by just what occurred, and forms a basis for the present litigation. The Interstate Company and appellee are engaged in the same kind'of business; and when the railway, acting under the orders of its competitor, refused to deliver ■cars to appellee it delivered appellee into the hands of its business rival.

The natural result followed. Appellee was in the ■end forced to sell to its competitor the accumulated stock of logs and lumber, after futile attempts to find another purchaser. The facts of this case accentuate our doubtfulness of the validity of such a contract as appellant has constructed by ingenious argument, but which we think the Railway Company did not make. There is no claim that this switch had been abandoned as a shipping point; on the contrary, it is claimed the Interstate Company enjoys a ten years’ exclusive grant to the railway’s property at this point, limited alone by the reserved right to the Railway Comapny to use its own property as a parking ground for empties and cripples, or possibly for a passing track. This construction of the contract is made in the face of the careful retention of the railway’s control over the movements and operation of the cars belonging to the Interstate Company over this track. The Interstate Company by this contract did not get title to the track, but the title remains in the company, and it is our opinion that it forms a part of its system, and must be operated impartially and without discrimination against parties demanding similar service; and having failed in this duty, to plaintiff’s damage, it follows that it must make reparation. The learned trial court adopted this view of the case, and after a careful review of his rulings we can find no default with any of them.

Affirmed.