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February 5, 1964


The opinion of the court was delivered by: Julius J. Hoffman, District Judge.

In this suit the plaintiff, The New York Railroad Company, seeks to have the court enjoin the defendant, Southern Railway Company, from operating over private mine trackage owned by the Peabody Coal Company, running between Southern's Boonville, Indiana, agency station and Peabody's Lynnville Mine, and it is also sought to have the court restrain the defendant from serving that mine.

The action arises under section 1, paragraphs 18-22, of the Interstate Commerce Act, 49 U.S.C. § 1(18)-(22). The plaintiff and the defendant are both common carriers by railroad operating in interstate commerce, and as such are subject to the provisions of Part I of the Interstate Commerce Act, 49 U.S.C. § 1-27, including National Transportation Policy, 49 U.S.C. preceding § 1. The plaintiff and the defendant are duly authorized to do business as foreign corporations in Illinois, both maintaining offices within the territorial limits of the District Court of the United States for the Northern District of Illinois, Eastern Division. This court thus has jurisdiction of the cause and of the parties.


A portion of the plaintiff's line of railroad known as the Tecumseh Branch extends from a point known as Buckskin Station in Gibson County, Indiana, easterly to and through a point on its railroad known as Lynnville in Warrick County, Indiana, which is approximately five miles easterly of Buckskin Station. The plaintiff constructed this branch under authority of a certificate of public convenience and necessity which it sought and obtained from the Interstate Commerce Commission in 1938. Cleveland, C., C. & St. L. Ry. Construction and Operation, 228 I.C.C. 461 (1938). In its report, the Commission found as follows:

"* * *

    "* * * The record shows a public need for the
  proposed construction in that it will develop a
  virgin coal field not now supplied with
  transportation facilities, and will result in a
  substantial increase in the business of the New York
  Central without diverting any traffic now handled by
  another line of railroad." 228 I.C.C. at 462-63.

Development of the coal lands in the area of the plaintiff's Tecumseh Branch led to the opening of the Lynnville Mine, now owned by Peabody. The coal tipple of that mine is located approximately 350 feet south of plaintiff's branch. The tipple was constructed during 1952 and commenced operation on December 7, 1952. In 1952 and 1953, the plaintiff expended $253,105.95 for capital improvements for track, communications, signals, and station facilities in the vicinity of Lynnville, for the purpose of providing rail service to the Lynnville Mine. During 1962, the plaintiff originated 25,679 carloads of bituminous coal at this mine, containing 1,570,768 tons of bituminous coal, as compared with 21,426,315 tons of bituminous coal at all mines served by the plaintiff. During 1962, the tonnage of bituminous coal transported by the plaintiff was 40.2 percent of the total tonnage of carload freight carried by the plaintiff during that year.

The defendant operates a line of railroad easterly from the City of Evansville in Vanderburgh County, Indiana, to and through a point on its railroad known as Boonville Station in Warrick County, Indiana, approximately seventeen miles east of Evansville. Southern constructed and for many years has owned and maintained a track approximately 1.4 miles long running northerly from its main line at Boonville, called Southern's Sunlight Spur. Peabody owns and maintains a private track approximately ten miles long (hereinafter called the Peabody track) extending northerly from a connection with the old Sunlight Spur of Southern to the Lynnville Mine of Peabody. This track is located on land either owned by Peabody or over which Peabody has an easement for the track. The Peabody track, except for the last 5,150 feet at the northern end, was built at various times between 1945 and 1954. Various parties participated in the construction of the northerly 5,150 feet of track. On 2,150 feet, Peabody did the sub-grading, construction, and spreading of ties in 1955; on the other 3,000 feet, the sub-grading was done by the Olinger Construction Company in August, 1955. In September, 1958, at the request of Peabody, Southern completed the construction of the northerly 5,150 feet adjacent to the Lynnville Mine at a cost of $26,381, including the cost of material and labor. On April 8, 1963, Peabody paid to Southern $25,000, and in consideration thereof Southern gave Peabody a bill of sale for all its interest in the northerly 5,150 feet of the Peabody track. On January 10, 1959, the defendant commenced operations over the private Peabody track for the sole purpose of serving Peabody at the Lynnville Mine, and the defendant has not used the Peabody track to serve anyone except Peabody. The defendant has not applied for nor obtained certification under section 1(18) of the Interstate Commerce Act to operate over this trackage or to serve the Lynnville Mine.


The defendant denies, in its answer, that its operation from Boonville to Peabody's Lynnville Mine is an extension of its line within the meaning of section 1(18) and asserts that no authority from the Interstate Commerce Commission is required under section 1(18) for this operation. The defendant further alleges that it operates on the Peabody track to serve only the Peabody mine, that it has no right to use the Peabody track to serve anyone else, and that it does not hold itself out by tariff or otherwise to serve the general public over this track. Therefore, the defendant insists, this operation is merely a switching operation purely incidental to the roadhaul service of the defendant beyond Boonville, from which point the defendant's tariffs for roadhaul service apply.

The defendant further takes the position that by virtue of the private Peabody track which connects with the defendant's line, the Lynnville Mine is an industry located on the defendant's line; consequently, the defendant asserts, its operation to the Lynnville Mine does not constitute an invasion of the territory of the plaintiff, since the defendant is simply rendering switching service to an industry located on its line.

The parties have entered into stipulations which cover substantially all of the facts here involved. The only issues of fact raised are in regard to the relevancy and weight of certain evidence presented as well as the interpretation to be placed upon that evidence. The case was tried to the court without a jury and was taken under advisement on the trial record and memoranda submitted by counsel.

Both the plaintiff and defendant agree that the single issue to be decided in this proceeding is whether the defendant's operation over the private Peabody trackage to serve the Lynnville Mine constitutes an extension of line within the meaning of section 1(18) of the Interstate Commerce Act. This court has no jurisdiction to decide whether the defendant's service of the Lynnville Mine, if an extension of line within the meaning of section 1(18), is required by "the present or future public convenience and necessity." That question is the exclusive province of the Interstate Commerce Commission. New York C.R.R. v. Norfolk & W. Ry., 214 F. Supp. 549, 554 (S.D.W.Va. 1963).

Section 1(18) provides, in pertinent part as follows:

    "No carrier by railroad subject to this chapter
  shall undertake the extension of its line of
  railroad, or the construction of a new line of
  railroad, or shall acquire or operate any line of
  railroad, or extension thereof, or shall engage in
  transportation under this chapter over or by means of
  such additional or extended line of railroad, unless
  and until there shall first have been obtained from
  the Commission a certificate that the present or
  future public convenience and necessity require or
  will require the construction, or operation, or
  construction and operation, of such additional or
  extended line of railroad * * *."

Section 1(22) provides, in pertinent part, as follows:

    "The authority of the Commission conferred by
  paragraphs (18) to (21) of this section, both
  inclusive, shall not extend to the construction or
  abandonment of spur, industrial, team, switching, or
  side tracks,

  located or to be located wholly within one State * *

The plaintiff places principal reliance upon Texas & Pac. Ry. v. Gulf, Colo. & S.F. Ry., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578 (1926), in contending that the defendant's operation to serve the Lynnville Mine is an extension of the defendant's line of railroad under section 1(18). As the plaintiff states, the Texas & Pacific case is the landmark decision under paragraph 18 defining the difference between construction of an extension of line, for which Commission authority is required under paragraph 18, and construction of industrial trackage, wholly within one state, within the paragraph 22 exception. In that case, the Supreme Court, in an opinion by Mr. Justice Brandeis, held that proposed trackage, 7½ miles in length, to be constructed by the defendant carrier, constituted an extension of line, where the line was to serve an industrial area not previously served by the defendant, and being served by the plaintiff. The defendant carrier argued

  "* * * that a branch is a line serving one or more
  stations beyond the point of junction with the main
  line or another branch, and to or from which stations
  regular tariff rates are in effect; that an
  industrial track is a line constructed to serve or
  reach industries over which regular scheduled
  passenger or freight train service is not performed
  and for transportation over which only a switching
  charge, if any, is made; and that neither the ...

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