Paul & Pacific Railroad Co. v. Chicago & Eastern Illinois Railroad Co., supra; Missouri, Kansas & Texas Railroad Co. of Texas v. Texas & New Orleans Railroad Co., supra.
Will it involve special financing or condemnation proceedings? Missouri, Kansas & Texas Railroad Co. of Texas v. Texas & New Orleans Railroad Co., supra.
Is the cost reasonable for an industrial spur in the light of the traffic involved and has the railroad been requested by the customer to give it service? United States v. State of Idaho, supra; Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Chicago & Eastern Illinois Railroad Co., supra.
Will the proposed connection provide service to the single customer similar to that provided other industries in the same area and similarly situated? Texas & Pacific Railway Co. v. Gulf, Colorado and Santa Fe Railway Co., 1926, 270 U.S. 266, 46 S. Ct. 263, 70 L. Ed. 578; Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Northern Pacific Railroad Co., D.C.Wash.1954, 120 F.Supp. 710.
It appears to the Court that the proposed construction falls exactly within all of the tests laid down in the decided cases. The present connection will serve only a single plant owned and operated by a long time customer of Reading. Reading has for decades been one of the two carriers supplying Philadelphia Electric Company in the southeastern part of Pennsylvania with bituminous coal. Pennsylvania is the other rail carrier supplying that company and the traffic has been divided between the two on an approximately even basis. In this particular instance, the Philadelphia Electric Company, feeling that it urgently requires the facilities to be supplied by Reading, has requested the connection. It has asked no more and no less service than is given to fourteen large industrial plants within a ten mile radius of the site in question. Therefore, in this case we have the two important features of an industrial spur high lighted by Mr. Justice Brandeis in his opinion in Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe Railway Co., supra, that tracks in the nature of an industrial spur either improve the facilities required by shippers already served by the carrier or supply facilities to others who being within the same territory and similarly situated are entitled to like service from the carrier. It is clear from the record that there is no intention on the part of Reading to do anything which would in any wise give this 1,877 ft. spur characteristics of a branch line by supplying passenger, telephone, telegraph, loading platform, station or station agent's service. It is slightly more than one-third of a mile long and will be used only for switching service incidental to line haul movement. It will deliver coal on the siding of a single plant and will serve no industries other than Philadelphia Electric Company. From the exhibits in the case it is patent that no other industries could possibly be located along the line of the proposed spur. That it is not invading the territory of another road is clear from the background of railroad transportation in the Schuylkill valley outlined previously. The cost is reasonable in the light of the contemplated and assured revenue and no special financing or condemnation proceedings are involved. The sum total of all the evidence indicates to the Court that the construction involved incorporates all of the features of an industrial spur only and none of those involve an extension of lines.
Pennsylvania places great reliance upon the decision of Mr. Justice Brandeis in Texas & Pacific Railway Co. v. Gulf, Colorado and Santa Fe Railway Co., supra, in which case he held a proposed new line of tracks 7 1/2 miles in length to be an extension and not an industrial spur. The difference in the facts of that case as compared with this case accounts for the result. Gulf proposed to build a track 7 1/2 miles in length leading into an area never before served by it. Its purpose was to invade 'an industrial district' including multiple industries such as cement works, oil refineries and metal works never before served by it. No industry was located along the proposed 7 1/2 miles line and no territory adjacent to the Gulf line was expected to produce any freight tonnage. The court held that the proposed line was clearly not a spur in the sense that word is commonly used but rather presented all of the characteristics of a branch of a railroad, and a branch is clearly an extension of lines. Other cases cited by Pennsylvania in support of its contention likewise differ on their facts and do not support the result attempted to be here obtained. In Missouri, Pacific Railway Co. v. St. Louis Southwestern Railway Co., 8 Cir., 73 F.2d 21, there was an attempt by a third railroad to invade an industrial area containing multiple industries which was already adequately served by two competing railroads. In Missouri, Pacific Railway Co. v. Chicago, R.I. & P. RY. Co., 8 Cir., 41 F.2d 188, the defendant railroad attempted to construct a three city block freight depot which it proposed to locate less than two city blocks from a competing railroad. In order to reach the new freight station and the general adjoining area, never before served by it, it would be necessary to cross at grade the main tracks and at least two switching tracks of the plaintiff railroad, causing serious operating difficulties with the movement of 350 to 400 daily trains of the plaintiff railroad. The court there held that, taking all of the factors into consideration including an extension into new territory, the proposed construction would be considered an extension and not an industrial spur. In Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Northern Pacific Railroad Co., supra, the defendant company started construction of its proposed rail facilities after it had applied to the Interstate Commerce Commission for a certificate of convenience and had been refused. The trackage there would have invaded virgin territory adjacent to plaintiff's right-of-way which contained no industries. In Southern Pacific Co. v. Western Pacific California R. Co., 9 Cir., 61 F.2d 732, defendant proposed to construct some 2 miles of track into new and undeveloped territory solely for the purpose of harassing plaintiff railroad. The court held such construction to be an extension and not a spur. Each of the cases cited by Pennsylvania in support of its contention is distinguishable from the instant case and none of them are controlling in this action.
There is support for the conclusions here reached in the construction by Pennsylvania itself of two switching connections within the past decade; the first in the Schuylkill valley and the second in adjoining Chester valley. In 1946 the Publicker industries started the construction of a large plant at Linfield, Pennsylvania, a short distance north of Cromby. The plant was located along the main line of Reading. Pennsylvania's branch was on the far bank of the river. To connect with the plant it was necessary for Pennsylvania to bridge the Schuylkill River. Both railroads started construction of spurs at approximately the same time. Because Pennsylvania had to overpass a public highway it was necessary to obtain a permit from the Commonwealth of Pennsylvania's Public Utility Commission. Reading's spur had, of necessity, in order to reach the plant to cross land owned by the Commonwealth of Pennsylvania. To obtain permission to do so it was necessary to obtain passage of an act by the Pennsylvania legislature which somewhat delayed the Reading construction. However, Reading connected with the plant several months before Pennsylvania and was the first to supply service to that plant. Pennsylvania in that case made no attempt to secure a certificate of necessity from the Interstate Commerce Commission under Section 1(18) of the Transportation Act. While an attempted explanation of its failure so to do was given at the hearing in this case, the explanation must be disregarded. I would indeed be extremely surprised if any counsel for Pennsylvania would advise its operating department to disregard a plain mandate of law if Pennsylvania considered such construction to be an extension of lines. In that case Pennsylvania treated practically identical construction as that in the instant case as an industrial spur only.
Just east of Downington, Pennsylvania, and located along the Reading Company's Chester Valley branch is a Reading spur at Ashford, Pennsylvania, leading into the Bradford Hills quarry. For many years Reading had been the sole connecting line. In 1954 the quarry company found that it needed outlets for its stone in the territory generally covered by the Delmarva Peninsula, served by Pennsylvania, and not by Reading. On request, Reading gave Pennsylvania permission to cross its line at grade for the purpose of running Pennsylvania's industrial spur into the quarry and building its siding to serve the quarry company. Again, Pennsylvania never requested a certificate under Section 1(18) of the Transportation Act. In its application to the Public Utility Commission of the Commonwealth of Pennsylvania, Pennsylvania properly characterized the Bradford quarry siding as an industrial spur. In another somewhat similar case when it ran an industrial spur across the Delaware River from New Jersey into Pennsylvania in 1952 to a new power plant at Martin's Creek, Pennsylvania, Pennsylvania did make application to the Interstate Commerce Commission but only because the construction was not wholly located within one State. Again, Pennsylvania invading an entirely new field, in a different State, characterized, and properly so in the opinion of this Court, its construction at Martin's Creek as an industrial spur only. In that case construction costs exceeded $ 1,000,000.
Section 1(22), supra, provides that siding connections in the nature of industrial spurs, if located wholly within a single State, may be made without the permission of the Interstate Commerce Commission. Therefore any attempted assertion of jurisdiction over such construction by the Interstate Commerce Commission would be without authority in law. United States v. State of Idaho, supra, is authority for the proposition that any attempted interference by the Interstate Commerce Commission in a controversy involving such a situation is without legal effect and therefore null and void.
It is clear that the basis of this action is an understandable effort on the part of Pennsylvania to preserve its monopoly of freight revenues from the Cromby plant. It has advanced what the Court believes to be a very novel position, to wit: That once any railroad has made siding connections with an industrial plant, no other railroad may without special permission of the Interstate Commerce Commission evidenced by a certificate of necessity make rail connections with that plant. It further contends that this is so despite the need for service of the customer and despite the fact that such connections are located wholly within one State and may be readily made by the adjacent competing carrier. Diligent research has revealed no decided cases in any Federal or State court supporting this contention. On the contrary, the decided cases have been uniform in holding that in a like situation there is no necessity for obtaining any such certificate. Under the plain mandate of the statute the Interstate Commerce Commission lacks jurisdiction in the matter.
In deciding that this construction is an industrial spur, I have not taken into consideration the overwhelming showing of need for the service requested on the part of the Philadelphia Electric Company. Neither have I considered the rather short but highly significant showing of Reading as to the importance of this connection in the scheme of national defense. I have limited my consideration to the single question whether under all the facts the total sum of the evidence reveals an extension of lines or an industrial spur. The record, in the view of the Court, establishes that it is a true industrial spur within the terms of the statute and the decisions of the courts interpreting the statute. A common sense approach to the problem in the light of the history of railroad transportation in the Schuylkill valley dictates the same result. Hence, the order which was heretofore entered declaring the Reading connection with the tracks of the Philadelphia Electric Company at Cromby, Pennsylvania, to be an 'industrial spur', the construction of which is permissible under Section 1(22) of the Interstate Commerce Act without securing a certificate of necessity from the Interstate Commerce Commission.
Requests for Findings of Fact and Conclusions of Law have been submitted by both the plaintiff and defendant.
The Court affirms plaintiff's Requests for Findings of Fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 and 16. The Court denies, as stated, Requests Nos. 11, 14 and 15.
The Court affirms plaintiff's Requests for Conclusions of Law No. 1, and denies Requests Nos. 2, 3, 4, 5 and 6.
The Court affirms defendant's Requests for Findings of Fact Nos. 1 to 22 inclusive, and affirms as Conclusions of Law defendant's Requests Nos. 23, 24 and 25.
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