
    BALTIMORE & OHIO RAILROAD CO. v. THE UNITED STATES
    [No. A-6.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Contract; construction of tractos on camp site.- — -See Philadelphia, Baltimore é Washington B. B. Co. v. United States, 62 O. Cis. 637.
    
      The Reporter's statement of the case:
    
      Mr. John F. McCarron for the plaintiff. Mr. George E. Hamilton was on the briefs.
    
      Mr. Percy M. Cox, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The Baltimore & Ohio Railroad is a corporation organized under the laws of the State of Maryland, and at the times hereinafter mentioned operated a system of railroads in interstate commerce in the United States.
    II. In May, 1917, Maj. Gen. J. Franklin Bell was the commanding officer of the Eastern Department of the Army with headquarters at Governors Island, in the State of New York, which department included the States of New York, Pennsylvania, New Jersey, Delaware, Maryland, and Virginia, and he some time in May, 1917, under the authority of the Secretary of War, appointed a board whose duty it was to select sites for cantonments within the area of said Eastern Department. Among other sites examined and considered by the said board was one at Admiral, Md. This-site was situate on the electric line of the Washington, Baltimore & Annapolis Railroad. This site was finally selected,, and its selection was approved by the Secretary of War on June 22,1917, and became known as Camp Meade.
    III. Before the selection of the aforesaid site was decided upon numerous consultations were had between the officers, of the United States and the officers of the two railroads, to. wit, the Baltimore & Ohio and the Pennsylvania Railroads, as to the trackage which would be necessary to connect the cantonment with the two railroads and which would be necessary for the purposes of the proposed cantonment. The Secretary of War through the Adjutant General of the Army instructed General Bell on June 15, 1917, as follows::
    “ It has recently come to the attention of the War Department in connection with the selection of sites for divisional training camps that certain railways have expected to charge the Government cost plus ten per cent for constructing railway tracks and switches connecting suitable-points on their lines with proposed camp sites. In the establishment of similar camps heretofore it has been necessary for railways to so extend their lines and switches free of cost to the Government in consideration of the profit derivable from the greatly increased traffic incidental to the location of such camps. No authority has been given to any one to offer or give compensation to railways for said service. You will without delay make the contents of this message known to the controlling officials of all railways concerned in your department, informing them that no authority has been or will be given contemplating payment for such facilities in any case whatever. Where such payment is demanded, you will proceed to hunt for suitable camp sites having other railway facilities and make no agreement to pay for facilities of above type.”
    IV. On June 20, 1917, General Bell met with Mr. W. W-Atterbury, vice president of the Pennsylvania Railroad Co. and also vice president of the Philadelphia, Baltimore & Washington Railroad Co., and Mr. A. W. Thompson, vice president of the Baltimore & Ohio Railroad Co., for the purpose of discussing the location of the cantonment at Annapolis Junction or Admiral (afterwards known as Camp Meade), with particular reference to the amount of track-age which the railroads would construct. As a result of this meeting the following agreement was signed. The agreement ay as made in triplicate; General Bell signed his name “ J. F. Bell ” and Mr. Atterbury and Mr. Thompson signed their initials on each copy:
    85 Cedar Street,
    New York Citt, June W, 1917.
    
    It is understood and agreed between General Bell, representing the War Department, and Mr. W. W. Atterbury, representing the Pennsylvania Railroad Company, and Mr. A. W. Thompson, representing the Baltimore & Ohio Railroad Company, that at the site for a divisional training camp known as Annapolis Junction or Admiral, these railways Avill construct a joint track connecting with the Philadelphia, Baltimore & Washington Railroad at Odenton, and with the Baltimore & Ohio Railroad at Annapolis Junction, a distance of approximately 6 miles, and will, if necessary, construct in addition thereto, not exceeding 2 miles of sidings or SAvitches parallel to the main connecting line, at their o>vn expense; the total track and sidings in no case to exceed 8 miles. All in addition to that amount to be constructed at the expense of the Government.
    June 20, 1917.
    W. W. A.
    A. W. T.
    J. F. Bell.
    V. Under a verbal arrangement with the Washington, Baltimore'& Annapolis Electric Railroad Co. the plaintiff used the right of way of the electric railroad and reconstructed the existing tracks by taking up the 56-mile pound rails and putting in their place 85-pound or heavier relay or used rails, replacing certain worn-out ties and rebuilding and strengthening the culverts and crossings, so that the track could be used by both steam and electric roads. The reconstructed portion was from Annapolis Junction to Rogue Harbor Run (Camp Meade), a distance of approximately 4 miles, or 21,875 feet, being 4,817 and 17,058 feet, respectively. This was the original location of the Washington, Baltimore & Annapolis light line from Annapolis Junction to Odenton, in the State of Maryland.
    In connection with the reconstruction of said track a siding extending east from Annapolis Junction, Md., of 1 mile was also constructed by the plaintiff and put in service in the early part of September, 1917.
    YI. In July, 1917, the plaintiff constructed at Annapolis Junction, 4 miles from Camp Meade and on its own land adjacent and partly parallel to the plaintiff’s main line between Baltimore and Washington, a passing siding 8,158 feet in length, 65-car siding, installed additional tracks and crossovers along its main line with interlocking protection, and enlarged its station at that point, and also from time to time constructed at Annapolis Junction three wyes and a crossover, totaling 2,596 feet. These tracks were for the expeditious handling of cars from the main-line tracks from Washington and Baltimore to the main track from Annapolis Junction to Camp Meade, and were primarily for the benefit of the plaintiff in the operation of its business as a common carrier and were deemed necessary by the plaintiff. And there was no demand for them by any one having authority to speak for the United States. The cost of these facilities and construction amounted to the sum of $102,292.03.
    VII. During the construction work above mentioned and prior to October, 1917, the original camp reservation had been extended by lease and purchase of certain lands south of the right of way of the Washington, Baltimore & Annapolis Railroad on which both the Baltimore & Ohio and the electric line were operating. From then the Government owned on both sides of the right of way of the Washington, Baltimore & Annapolis Electric Railroad, commencing 1 mile from Annapolis Junction and extending 3 miles to Admiral, but acquired no interests to the right of way of the road.
    Yin. In October, 1917, a remount depot was established on the land acquired by the Government to the south side of the railway right of way, east of Portland, and in order to load and unload animals a siding was ordered constructed of 902 feet in length, and a feed storehouse was built to which the Government ordered a siding constructed of 714 feet in length. During the following year this siding was lengthened 425 feet. These tracks were constructed by the plaintiff.
    IX. When the warehouses at Disney were constructed the temporary sidings were made permanent by grading and laying of rails. These warehouses were erected approximately at the points designated on the original plans of the cantonment north of the main line and the sidings were constructed solely to serve these utilities of the camp. These tracks are the following numbers of feet in length, 9,387.
    X. At about the time the remount-depot sidings at Portland were being constructed on the contonment site two of these sidings constructed for the contractor were converted into car-storage tracks, 1,183 feet and 1,590 feet, respectively. One of these tracks was extended, in 1918, 100 feet. These tracks were constructed for the convenience of the Government.
    XI. In the latter part of November, 1917, the ordnance depot having been established between Portland and Disney on the original cantonment site and north of the main-line track to Bogue Harbor Bun, a siding to serve this depot was constructed of 958 feet. During the year 1918 this siding was extended 930 feet in order to serve a grain elevator, mailing a total of 1,888 feet.
    During the year 1918 a second ordnance track of 1,700 feet was constructed alongside of the first ordnance siding.
    XII. The Government erected within the cantonment site a coal trestle, and the plaintiff and the Philidelphia, Baltimore & Washington Bailroad jointly laid the ties and rails thereto and thereon for the distance of 612 feet. The plaintiff paid one-half of the construction costs and the other half was paid by the Philadelphia, Baltimore & Washington Eailroad.
    XIII. In 1918 plaintiff constructed a fuel track for coal cars just east of the ordnance depot within the cantonment, and at the request of the Government, and west of the coal trestle for the distance of 1,026 .feet.
    XIV". In the fall of 1917, with the acquiescence and consent of the Government, the plaintiff erected for its own use a warehouse and an express shed and passenger station at Disney on the south side of the right of way, and constructed a siding of 729 feet in length to serve these buildings. These utilities were to take care of the less-than-carload shipments, express business, and passenger traffic. The Government acquiesced in the location of the buildings and consented to this siding crossing an important road.
    These buildings are a combination office and express shed and freight warehouse, and the small building across the main tracks was constructed by the plaintiff for the general agent and detraining officer.
    XV. The car congestion at Brunswick and at Harrisburg and other points was so great at this time and handling-troops on one track so dangerous that during the months of October and November, 1917, plaintiff’s officers became convinced the traffic conditions made it advisable to provide a second main track from Annapolis Junction to Bogue Harbor Eun (Camp Meade), and acting on this conviction constructed from the east end of the 1-mile siding at Annapolis Junction a track of 16,662 feet in length, including two main-line crossovers and one turnout parallel to the first main track, on the roadbed and right of way of the Washington, Baltimore & Annapolis Eailroad. This was an extension of the 1-mile siding extending from Annapolis Junction, and when connected made the tracks on the north side of the right of way (Nos. 1 and 4) a steam road its entire length and the tracks (Nos. 2 and 3) on the south side of the roadbed a joint steam and electric road. The number of feet claimed by the plaintiff is 16,077.
    Before the construction of this second track the two roads used the same trackage, but the tracks were laid for 1 mile from Annapolis Junction on the north side of the roadbed and then crossed over to the south side for the remaining distance of 3 miles to Rogue Harbor Run (Camp Meade).
    XYI. The reasonable cost to the plaintiff of the tracks constructed by it, f,or which the Government is liable under the contract entered into by it with the plaintiff, is the sum of $183,000.
    XVII. The Washington, Baltimore & Annapolis Electric Railroad Co. wished to extend its electric tracks into the camp grounds, and having obtained permission to make a loop inside the camp it was found necessary to grade from Admiral under the connecting line between Odenton and Annapolis ’Junction (main line) and at Rogue Harbor Run up to the cantonment. This line was later abandoned, and the track for the loop was connected from the main line. This grading was for the benefit and use of the Washington, Baltimore & Annapolis Electric Railroad Co. The loop inside the camp grounds was for the accommodation of its passenger traffic.
    XVIII. The claim was submitted by the plaintiff to the Secretary of War under the provisions of the act of March 2, 1919, known as the Dent Act. The claims board, transportation service, awarded the plaintiff the sum of $13,148.53, on June 25, 1920. The appeal section allowed the plaintiff the sum of $181,431.08. The Secretary of War set aside the award of the appeal section, and awarded the plaintiff the sum of $73,748.53, on September 29, 1920, which it refused to accept.
    The court decided that plaintiff was entitled to recover.
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover the sum of $430,734.50. The suit is based upon an express contract had between a representative of the plaintiff and Gen. J. Franklin Bell, acting for the Secretary of War. It is conceded that General Bell had authority to contract for the Secretary of War, and the only issue herein involved is the number of feet of track constructed by the plaintiff for the benefit of the United States under the provisions of the contract above referred to. That contract is set out in Finding IV, and it is not necessary to repeat its terms and provisions here.

We carefully considered the evidence adduced by both parties to this suit, and have arrived at what we are of opinion is a fair and reasonable compensation to the plaintiff for the tracks constructed by it for the benefit of the Government under the terms of the contract above referred to.

A judgment will be awarded the plaintiff in the sum of $183,000. It is so ordered.

Moss, Judge; Geaham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  