
    505 F. 2d 1282
    ANSEL BYRON THOMAS, ET AL. v. THE UNITED STATES, AND BEECH CREEK RAILROAD COMPANY AND PENN CENTRAL COMPANY, THIRD-PARTY DEFENDANTS
    [No. 352-69.
    Decided November 20, 1974]
    
      
      William A. Bradford, Jr.,, attorney of record, for plaintiffs. Hogan and Hartson, of counsel.
    
      Dmid W. Miller, with who was Assistant Attorney General Wallace H. Jolmson, for defendant.
    
      William P. Jones, attorney of record, for third-party defendants.
    Before Cowen, Chief Judge, Skelton and Miller, Judges.
    
    
      
      Associate Judge o£ tile United States Court of Customs and Patent Appeals, sitting by designation pursuant to 28 U.S.C. § 293(a).
    
   Per Curiam :

This case comes before the court on plaintiffs’ exceptions to the recommended decision filed March 12,1974, by Trial Judge C. Murray Bernhardt pursuant to Rule 134 (h), having been submitted and considered upon the briefs and oral argument of counsel.

Since the court agrees with the trial judge’s recommended decision, as to the claims of the plaintiffs against the defendant, as hereinafter sot forth, it hereby affirms and adopts the said decision as the basis for its judgment as to these claims in this case. It is therefore concluded that plaintiffs are not entitled to recover on their claims and, as to them, the petition is dismissed.

In view of this court’s decision in Bowser Inc. v. United States, 190 Ct. Cl. 441, 420 F. 2d 1057 (1970), the court concludes that it has no jurisdiction of the claim asserted in the petition of the United States against the third-party defendants. It is therefore ordered that the petition of the United States against Beech Creek Bailroad Company and Penn Central Company (now Penn Central Transportation Company) be and the same is hereby dismissed.

On the basis of this court’s decision in Rolls-Royce Limited v. United States, 176 Ct. Cl. 694, 364 F. 2d 415 (1966), the court concludes that it has no jurisdiction of the counterclaim by the third-party defendants against the plaintiffs. It is therefore ordered that the counterclaim of Beech Creek Bail-road Company and Penn Central Company (now Penn Central Transportation Company) be and the same is hereby dismissed.

OPINION OP TRIAL JUDGE

Bernhardt, Trial Judge:

The plaintiffs claim Fifth Amendment just compensation for the alleged taking in 1964 of their leasehold, sidetrack, and coal tipple beside the main line of the New York Central Bailroad at Bells Landing, Pennsylvania. The taking was consequent to a flood control project on the West Branch of the Susquehanna Biver undertaken by the United States pursuant to the Flood Control Act of 1954. 68 Stat. 1248, 1257. The project entailed construction of the Curwensville Beservoir, which necessitated relocation of the Bailroad right-of-way and tracks in the affected area. In lieu of authorized land condemnation proceedings the United States contracted with the Bailroad for the latter to remove, at Government expense and under its supervision, the tracks and structures from the superseded right-of-way, while the United States constructed a new right-of-way and tracks. In 1968, approximately 2 years after the rail traffic had been diverted to the new track, the parties exchanged deeds whereunder the United States acquired the abandoned right of-way and the Railroad the replacement.

In 1944-45 Ansel Thomas and his late father, H. S. Thomas, as partners, were assignees from one Lark of the latter’s leasehold and sidetrack agreement with the Railroad providing a sidetrack and ramp adjacent to which the assignees erected in 1948 a coal tipple and accessory facilities for the weighing, cleaning, sorting, crushing, and loading of coal strip-mined from their nearby coal-bearing lands. The lease was for one year which was automatically renewable for successive yearly increments by holding over, and was terminable by the Railroad at any time on 30 days’ written notice, or on 10 days’ notice in the event of nonpayment or other breach by the lessees. Upon lease termination the lessee had 5 days to remove his property on penalty of it becoming Railroad property. The sidetrack agreement was not for a fixed period and was terminable by either party on 30 days’ written notice. Both the lease and the sidetrack agreement required the written consent of the Railroad to any assignment or subleasing. Such consent had been given Lark for his previous assignments to the Thomases.

By 1962 the Thomases had stripped all of the coal from their coal-bearing lands that was economically accessible with the equipment they possessed. 'In May 1962 the Thomases “leased, assigned and conveyed” to the Shawville Coal Company the exclusive right to use the sidetrack and tipple in issue, including the right to use “so much of the Lessors’land surrounding or adjacent to the sidetrack * * * as may be convenient for the Lessee’s enjoyment.” At the same time the Thomases leased certain coal rights to Shaw-ville in their adjacent coal-bearing lands, subject to the payment of prevailing tonnage royalties which, obviously for tax depreciation benefits, greatly out-dollared rents under the tipple and sidetrack agreement. Both of these agreements were for 3 years with options to renew for an additional 3 years, and in each Shawville could terminate at any time on 30 days’ notice. Shawville cancelled both agreements in April 1965 without exercising the renewal options because the leased lands could no longer be economically mined without going deeper than their equipment permitted. Shawville was a large operator with mines elsewhere in the vicinity.

The Thomases did not obtain the Railroad’s consent to the tipple and sidetrack assignment to Shawville, although they knew of the requirement and on several previous occasions had made temporary assignments to others after securing the Railroad’s consent. The Railroad’s local operating personnel, such as the area trainmaster and his subordinates, as well as the Railroad’s project engineer for the dam, knew of Shaw-ville’s use of the tipple and sidetrack almost throughout the relationship, if they did not know of the assignment itself, and did not inform the Railroad’s distant Real Estate Agent or its accounting department who were responsible respectively for leases of Railroad property and for collection of rents thereon. Shawville knew of the requirement for the Railroad’s consent to the assignment but did not suggest that it be obtained. Nor did the attorney who prepared it.

The Railroad’s Real Estate Agent and its accounting department were not only unaware of the assignment to Shaw-ville, but were even oblivious of the fact that in June 1966 the subject property had been deeded to the United States by the Railroad without mention of a lease encumbrance. They continued to carry the Thomases as lessees following June 1966 and also continued to bill the Thomases for rent until November 1969. Needless to say, at no time did the Railroad terminate the lease and agreement by 30-day written notice as it could have done whenever it wished, without cause. On at least one occasion after the Railroad no longer owned the property it even raised the rent by an endorsement accepted by Ansel Thomas. For reasons which are only speculative Ansel Thomas continued to maintain sidetrack insurance and to pay rent to the Railroad until June 1967 and possibly beyond despite the fact that the siding had been inoperable and unused since October 1964. The circumstances are a mute commentary on the sprawling inefficiency of a railroad so vast that a lease and even a fee title can get lost in the bureaucratic warren.

The last use of the sidetrack and tipple for loading coal was on September 4, 1964. By the end of October 1964 the sidetrack and tipple had become unusable due to the removal by the Railroad, in the course of the track relocation project, of the tracks from the superseded right-of-way and the Railroad’s portion of the sidetrack serving the siding. No formal advance notice had been given by the Railroad or the United States to Ansel Thomas of the removal, but notice would have been superfluous since he was conscious at all times of the status of the project and its impending threat to his siding. Between July and October 1965 the United States dismantled, demolished and removed remaining structures from the siding. Ansel Thomas was permitted to salvage betimes anything of value he wished from the tipple, such as the crusher, part of the scales, and his portion of the sidetrack, and presumably did so. By this time he personally considered that his agreement with the Railroad for use of the sidetrack had terminated, although inexplicably he continued to pay rent for several years as stated before.

After the closing of the Ansel Thomas tipple in October 1964 Shawville processed and loaded coal extracted from the plaintiffs’ property (until April 1965) and elsewhere through the Jefferson Thomas tipple, which was located within a mile of the superseded tipple and, while it involved a slightly longer haul, approximated the latter’s net use charges when certain adjustments were made for services rendered. For example, whereas Shawville paid from 20 to 25 cents per ton to use the Jefferson Thomas tipple as against 3 to 5 cents per ton for the Ansel Thomas tipple, Shawville paid certain maintenance and operation charges at the latter which were included in the other’s price, so the net cost of each tended to even up. Suffice it to say that Shawville ostensibly used both of the tipples indiscriminately for loading coal while they were simultaneously available, with emphasis on the Ansel Thomas facility, as though a price difference was inconsequential. If the choice was dictated by respective capacities or other factors it is not shown.

As part of the flood control project the United States provided a new siding along the relocated right-of-way within a mile of the superseded Ansel Thomas tipple. Ansel Thomas expressed interest originally in the new siding but was not offered, and did not request, an undertaking by the Railroad or the Government to move his tipple to the new location at no cost to him, although he could have leased the new siding had he wished, with the moving of his tipple to be optional with him and at his own cost. Nor is there adequate proof of the plaintiffs’ assertion that the Railroad offered compensation for the tipple, or that the Government ever intended to move it. For the Railroad to have borne the removal expense would have been inconsistent with its customary policy and with the fact that the tipple was erected at the Thomases’ expense in the first place. There was no obligation in fact or law for the Railroad to bear the expense. Thus it is reasonably concluded that Ansel Thomas was interested in leasing the new siding only if the cost of moving his tipple was borne by others. This explains why he made no effort to lease it. By then he was losing interest in being a coal operator other than as a lessor of coal rights and then only to hire out an occasional coal site or two to meet his bare subsistence needs.

The new siding was opened on a first-come first-served basis in April 1966. Shawville had dickered with the Railroad as early as 1963 over using the new sidetrack and ultimately leased it in June 1966. Thereafter Shawville graded the siding with quantities of fill so that coal dumped there could be conveniently loaded onto railroad cars with a front end loader. Shawville used the new siding as late as 1969 and 1970 when it was loading coal obtained from other lands controlled by Ansel Thomas.

From these facts the plaintiffs contend that a taking occurred on and after September 4, 1964, when the Ansel Thomas sidetrack was rendered unusable, that the taking was compensable even though contrived through a contract between the United States and the Railroad rather than by a conventional physical appropriation by the Government, that the expectancy of renewal of the year-to-year lease should be included in the taking, and that the nature, extent and value of the property taken would be the same whether the taking occurred on September 4,1964, or thereafter. They also maintain that severance damages are allowable because of the unity of use between the leasehold and the plaintiffs’ noncontiguous coal lands and rights. The United States defends on the several grounds that the Railroad’s acts in removing the tracks and thus destroying the leased use of the Ansel Thomas siding as well as his tipple are not attributable to the United States, that the leasehold and private sidetrack agreement were of no compensable value to plaintiffs after October 1964 because they had terminated previously, that the plaintiffs are not entitled to a unity of use valuation basis, and that even if there had been a taking the property rights taken were of no value at the time the United States formally exercised dominion over the lands in question in June 1966 by acquiring fee title.

The third-party defendants Beech Creek Railroad Company and the Penn Central Company, whose roles in this litigation are explained in footnote 1, defend on the principal ground that under basic landlord and tenant law the plaintiffs divested themselves of their leasehold rights prior to the alleged taking by expiration of the term, and by their covert assignment to Shawville. They also contend that plaintiffs are equitably precluded from any recovery by reason of their tacit participation with Shawville in a scheme to defraud the Railroad.

These various issues were presented to the court at an earlier stage on cross-motions for summary judgment. The court’s order of October 22, 1971, denied the motions and returned the case to the Trial Division for findings and conclusions on two issues: whether and when a taking occurred and, if so, whether there was a unity of use between the property alleged to have been taken and the noncontiguous coal lands owned by plaintiffs.

A fully dispositive flaw in plaintiffs’ case, obviating treatment of other promising candidates, is that by the time of the alleged taking of his lease in September or October 1964 Ansel Thomas had lost his leasehold interest by assigning it to Shawville in May 1962 lock, stock, and barrel. Pennsylvania law governs the issue, for the lease and sidetrack agreement were effected there.

A universal rule of landlord and tenant law is expressed in Haynes v. Eagle-Picher Co., 295 F. 2d 761, 763 (10th Cir. 1961), cert. denied, 369 U.S. 828 (1962) :

It is well settled that a conveyance by a lessee of an estate less than his own, retaining a reversion, is a sublease, while a conveyance which operates to transfer the entire interest of the lessee is an assignment.

This is the law in Pennsylvania. In re Bayley, 177 F. 522 (W.D. Pa. 1909) ; Girard Trust Co. v. Cosgrove, 270 Pa. 570, 113 A. 741 (1921). The assignment of a lease is the passing of the owner’s title to such lease, the legal effect thereof being the same as a sale of the lease. 21 P.L.E., Landlord and Tenant, Sec. 86, citing Goldberg v. Grossman, 105 Pa. Super. 50, 160 A. 138 (1932). After assignment the lessee has no reversionary interest. However, he remains liable to the lessor unless released therefrom by the latter. Gale Industries, Inc. v. Bristol Farmers Mkt. Co., 431 Pa. 464, 246 A. 2d 391 (1968). Reservation by the lessee of the right of entry on default, or additional rent charged the assignee, do not detract from the transaction as an assignment rather than a sublease nor constitute retention of a reversionary interest. This is unlike the case of a lessee who does not transfer his whole remaining term but licenses it for 3 months with 3-month renewals subject to termination by the lessee. In that state of facts the court construed a sublease to result because a term less than the lease term was involved. Morrisville Shopping Center v. Sun Ray Drug Co., 381 Pa. 576, 112 A. 2d 183 (1955).

Plaintiffs oppose these contentions of the third-party defendants by relying on the terms of the Shawville assignment, particularly a claimed limitation of the scope of the property interest assigned, the provision that improvements made by Shawville were to belong to the Thomases on termination, retention by the Thomases of any condemnation proceeds relating to existing structures on the premises, and the right of reentry on default.

The May 1962 instrument gave Shawville “the right to the use of so much of the Lessor’s land surrounding or adjacent to the sidetrack and the improvements erected thereon or thereby, as may be convenient for the Lessee’s enjoyment of the herein leased premises and improvements, and for necessary or convenient extension or additions to the herein leased premises.” The limitation is entirely meaningless, for the determination of what would meet Shawville’s “convenience” was in its sole discretion and could encompass the entire property leased by the Eailroad to the Thomases. There is no suggestion of a declaration by Shawville as to what its convenience embraced or excluded, or that any portion of the total premises not used by Shawville would be of the slightest utility to the Thomases. A limitation so vaguely expressed is tantamount to no limitation at all. It has been stated that “What is necessary to the enjoyment of the thing demised passes with it, as an appurtenance, without express words, yet, what is merely convenient does not.” 21 P.L.E., Landlord and Tenant, Sec. 211 citing Messer v. Rhodes, 3 Brewst. 180 (1870). However, the instrument in the present case expressly transferred the use of such portions of the premises as were convenient to Shawville, without limitation.

The other special features in the Shawville instrument relied on by plaintiffs to rescue the transaction from being regarded as an assignment do not do so because they do not amount to retention of a reversionary interest, which is the hallmark of a sublease. Thus the provision that improvements made by Shawville should belong to the Thomases on termination pertain to structures not in esse in May 1962 and, therefore, not part of the premises demised by the Eailroad to the Thomases. It was a private arrangement between the Thomases and Shawville concerning the ownership of improvements, just as was the provision confirming the right of the Thomases to retain the proceeds of future condemnation awards relating to their own improvements on the property which, by their lease with the Eailroad, belonged to the Thomases and could be removed by them on termination of the lease. Finally, the reservation by the Thomases of the right of reentry on Shawville’s default would not constitute retention of a reversionary interest, as held in Ottman v. Nixon-Nirdlinger, 301 Pa. 234, 151 A. 879 (1930).

The petition must be dismissed.

FINDINGS OF FACT

1. The United States Congress authorized construction of the Curwensville Reservoir, in Pennsylvania, by Act of September 3, 1954, 68 Stat. 1248, 1257. Part of the land needed by the Government for the reservoir was owned by the Beech Creek Railroad Company and was under long-term lease to the New York Central Railroad.

2. By contract dated April 16, 1962 (hereinafter referred to as “contract 62-115”) between the United States and the Beech Creek Railroad Company and the New York Central Railroad (hereinafter referred to collectively as “Railroad”) the parties agreed to a relocation, rearrangement, and alteration of facilities in order that the United States might acquire the land it needed for the Curwensville Reservoir that was owned by the Railroad in lieu of condemnation of that land. Pursuant to this contract the United States was to acquire land for a new railroad right-of-way, prepare the land for the laying of tracks, pay for the transfer of tracks from the superseded right-of-wajr which was to be used for the reservoir, and convey the new right-of-way to the Railroad. In exchange for the new land and the improvements thereon the Railroad was to convey to the United States its old right-of-way land needed for the reservoir after performing certain modifications of that land as required by the contract. The Railroad was required to deliver to the United States “releases from all liens and encumbrances on the lands so conveyed, and the consent of the holders of all liens and encumbrances on the lands so subordinated.”

3. Among the provisions of contract 62-115 were the following:

(a) The Railroad was to remove existing main line railroad track, passing tracks, and industry tracks from the property to be conveyed to the United States.
(b) The United States was to pay the Bailroad for all the work the Railroad performed pursuant to the contract.
(c) The United States was to approve all drawings, plans, and specifications of the Railroad for its work under the contract.
(d) The awarding of all subcontracts by the Railroad for its work pursuant to the contract was to be approved by the United States.
(e) The Railroad was to prepare any survey, drawings, schedule, or specification for its work under the contract as the United States might require.
(f) The Railroad was to maintain insurance on its work under the contract to the satisfaction of the United States.
(g) The United States was to obtain all rights in real property necessary for the performance of the contract, except as otherwise agreed to between the parties.
(h) The United States had the right to enter upon the existing Railroad right-of-way for the purposes of its work under the contract.
(i) If it became necessary for the interest of the Railroad to its existing right-of-way lands to be acquired by condemnation, the Railroad was to cooperate with the United States in the prosecution of the condemnation proceedings.

4. The United States gave notice to the Railroad to proceed under contract 62-115 on June 10,1963.

5. The first option by the United States to purchase property needed for the Curwensville Reservoir project was made on December 26, 1961. The first property acquired by the United States for the Curwensville Reservoir project was deeded to it on January 9,1962. The first declaration of taking in connection with the Curwensville Reservoir project was filed by the United States on May 9,1962.

6. Construction work by the United States on the Curwens-ville Dam started on May 6, 1963. The work consisted of clearing, stripping, excavation and grouting; placement of embankments and erection of spillway, outlet works and cofferdam and the diversion of the West Branch of the Susquehanna River.

7. The United States and S. J. Groves & Sons Company entered into a contract dated May 7, 1962, for railroad and highway relocations, whereby Groves was to build a new railroad grade, which the United States was to convey to the Railroad as partial consideration for the land needed by the Government for the Curwensville Reservoir. The United States gave Groves notice to proceed under the contract on May 17, 1962. By letter of November 19, 1963, the United States and the New York Central Railroad accepted, subject to correction of minor deficiencies, the new railroad grade in the Bells Landing area. The Railroad then installed the new tracks.

8. All Railroad traffic was diverted to the new relocated track on April 6,1964.

9. The Railroad was required by its contract 62-115 with the United States to remove its railroad track from the land to be deeded to the United States. Approximately 14 miles of track had to be taken up and was to be replaced with track at a higher elevation. To accomplish this the Railroad entered into a contract with the Morrison Railway Supply Corporation which was approved by the United States on February 4, 1964. The contract was accepted as complete on December 1, 1964.

10. On June 22, 1965, the United States contracted with the Great Lakes Wrecking Company to dismantle, demolish, and remove structures within the reservoir area. The contract was accepted as complete on October 6,1965.

11. The co-plaintiff Ansel Thomas and his late father, H. S. Thomas, had a leasehold interest in a parcel of land owned by the Railroad at Bells Landing, Clearfield County, Pennsylvania, which land was to be deeded to the United States pursuant to contract 62-115. The parcel, being 595 feet in length and varying in width from 30 to 120 feet, lay alongside the Railroad’s main track and had been leased on March 17,1944, to one Lark as a “site for coal loading dock and ingress and egress.” On January 2,1945, Lark, with the written consent of the Railroad, assigned his lease to the Thomases, including “all structures and improvements” thereon. Improvements at that time consisted of tracks and a loading ramp.

12. The lease so assigned to the Thomases was for a term of one year from April 1,1944, renewable from year to year by holding over, with option (never exercised) for the Kail-road to terminate at any time on 30 days’ written notice, or upon 10 days’ written notice on the happening of any one of several enumerated events, including inter alia the lessee’s breach of contract or vacating of the premises. Such a 30, 60, or 90-day termination notice provision was standard in all of the Kailroad’s leases of its property. Upon termination of the lease for cause all of the improvements placed on the premises by the lessee, if not removed, would become the property of the lessor, who could remove or demolish them at the lessee’s cost. Upon termination of the lease without cause the lessee had 5 days to remove all of his improvements on the premises. Assigning or underletting of the premises without written consent of the lessor were prohibited. The lease and the assignment thereof were signed for the Kailroad by its Land and Tax Agent.

13. The plaintiff Ansel Thomas and his late father, H. S. Thomas, also had a Private Side Track Agreement with the Kailroad by virtue of an assignment on November 17, 1944, by one Lark of his Private Side Track Agreement with the Kailroad dated May 15, 1944. The Kailroad consented in writing to the assignment. The principal subject-matter of the agreement was the Kailroad’s sidetrack of 185 feet from its point of connection to the main track, plus whatever tracks of its own the user would install, all on the parcel which was the subject of the lease assigned to the Thomases by Lark as described in findings 11 and 12. The sidetrack agreement fixed responsibility between the parties for sidetrack maintenance. Use of the sidetrack by others not a party to the agreement, or assignment of the contract without the Kailroad’s written consent were prohibited. The agreement, which was for no fixed term, was subject to termination by either party on 30 days’ written notice to the other. Such right was never expressly exercised. In the event of termination either party was permitted 30 days within which to remove his property, subject to the Kailroad’s option to buy the permittee’s property within 30 days after termination. The agreement was signed for the Railroad by its Vice President and General Manager, and was the responsibility of the Railroad’s Operating Department in New York City.

14 The sidetrack on the parcel in question at Bells Landing was eventually 931 feet long. The westernmost 413 feet from the point of attachment to the main railroad track was owned by the Railroad. The remaining 518 feet of the sidetrack on the east was owned by the Thomases. The sidetrack could accommodate between 10 and 12 railway cars, depending on their size.

15. On at least three occasions during the period 1945-47 Ansel Thomas and his father secured the Railroad’s written permission'for others to use the sidetrack facilities. The Railroad’s permission in these instances was given by its Superintendent. Prior to May 1962 the Thomases charged others for the use of their sidetrack facilities at the rate of 35 cents per ton of coal processed, including use of the track, tipple, and operating employees.

16. The Thomases entered the coal business in 1942. They acquired use of the land and sidetrack referred to in findings 11 through 14 in order to increase their profits by loading their own coal. In 1948 they constructed a coal tipple on the leased property so as to clean, crush, and sort the coal and thereby further increase their profit. The tipple comprised a bin for receiving coal, scales and a scale house for weighing coal, a vibrating picking table, a crusher, a conveyer belt, and a dock facility for loading the processed coal into railroad cars on the sidetrack. Three or four men were needed to operate the tipple. Neither the coal mines nor the tipple were in constant use throughout the year, particularly during the winter months due to the weather, or at other times due to economic conditions. Thus, plaintiffs’ employees at the mine and at the sidetrack were not fulltime employees.

17. (a) In 1964, within one-half to'3 miles of their sidetrack, the Thomases owned coal rights in 154 acres and owned in fee another 347 acres of coal bearing land. The coal was of good quality, low in sulphur and high in B.T.U.’s. From 1944 to 1962 they mined coal from some of this land and, since 1948, processed some of tbe mined coal through, the tipple constructed on their sidetrack. The approximate amounts of coal so mined for the years shown are as foilows:

Tons
1946_ 13, 365
1947_ 20, 436
1948_ 20, 818
1949_ 2, 290
1950_ 14, 804
1951_ 11, 421
1952___ 6,963
1953_ 3, 322
1954_ 1, 661
1955_ 3, 500
1956_ 3, 000
1957_ 2, 500
1958_____ 1,000
1959_ 0
1960_ 2, 500
1961_ 2, 500
1962___ 1, 500
Total...111,580

Since 1962 the Thomases have not themselves mined any coal from the lands in question, but others have.

(b) The reasons for the decline in coal tonnage mined by the Thomases after 1951 was a low market price and the difficulty they had in continuing to strip mine the coal with their inadequate equipment as the coal seams grew deeper.

18. Certain parts of the plaintiffs’ coal lands referred to in the preceding finding have never been mined.

19. The Thomases loaded the following tonnages over their coal tipple for the years indicated:

1953_3,321.90
1954_ 1,660.83
1955_ 3,453.20
1956_ 3,047.30
1957_2, 910. 99
1958_ 1, 142. 22
1959_ None
1960- None
1961_ 1,587.82
1962_ 1,740.30

20.(a) On May 28, 1962, H. S. Thomas, Ansel Thomas, and the latter’s wife Jo Clare Thomas entered into two agreements with the Shawville Coal Company, to which they had been selling coal until it became uneconomical for them to mine. By one agreement the Thomases leased coal rights in tracts 1 to 8 of their land to Shawville for the term of 3 years with an option to renew for 3 additional years. Royalties ranged from 15 to 50 cents per ton of coal mined, depending on the source. The lease was limited to strip mining. Shawville was given the first right of refusal to lease tract one for deep mining after stripping had been completed. The tipple agreement contained a condemnation clause giving the Thomases full right to the proceeds of any condemnation of the leased premises. Neither of the two agreements with Shawville were renewed. They were can-celled by Shawville on April 9,1965.

(b) By the second agreement of May 28, 1962, the Thomases “leased, assigned and conveyed” to Shawville “the exclusive right to use the sidetrack” and tipple in question for a term of 3 years, with option to renew for 3 additional years. The instrument included “The use of so much of the Lessors’ land surrounding or adjacent to the sidetrack and the improvements erected thereon or thereby, as may be convenient for the Lessee’s enjoyment of the herein leased premises and improvements, and for necessary or convenient extension or addition to the herein leased premises.” Shaw-ville was responsible for maintaining the tipple and leased premises at its expense. In the event of a condemnation proceeding to obtain possession of the property the Thomases were to retain full right to the condemnation proceeds, except those relating to additions by Shawville. Shawville could terminate the lease at any time on 30 days’ written notice to the Thomases. [’It is noted that the drafter of the Thomas sidetrack lease to Shawville confused the Thomases’ sidetrack agreement (findings 13,14) with their lease covering the parcel of land on which the sidetrack was located (findings 11, 12), treating them collectively as if they were a single sidetrack lease. Actually, the Thomases had a lease from the Railroad for only the parcel of land, and they utilized the sidetrack under an agreement which was not styled a lease. This is of no great moment, however, for in the case of both the lease and the sidetrack agreement assignments without written consent of the Railroad were prohibited.]

(c) Neither of the Shawville agreements were renewed. They were cancelled by Shawville on April 9,1965.

21. The sidetrack and tipple agreement between the Thomases and Shawville provided for payments to the Thomases of 3 cents per ton “for each ton of coal owned by the Lessors and mined or removed by the Lessee and loaded over the facilities”, and of 5 cents per ton “for each ton of coal not owned by the Lessors but loaded on or over” the facilities. The Thomases had no responsibility for maintenance or repair of the tipple under the agreement. The payments per ton provided for, when adjusted, were consistent with prevailing prices for comparable services and facilities. Plaintiffs contend that the revenues under the two agreements with Shaw-ville were deliberately over-allocated to the coal land lease and under-allocated to the tipple and sidetrack agreement in order to gain maximum tax advantages through depreciation.

22. Whatever interests H. S. Thomas may have had in the lease and assignment thereof and the sidetrack agreement and assignment thereof described above passed to the co-plaintiffs hereto, his children, by the last will and testament of H. S. Thomas, who died in July 1962.

23. Between 1962 and September 1964 Shawville mined the following approximate amounts of coal from the Ansel Thomas coal lands :

1962 _38, 610 tons
1963 _ 74,446 tons
1964 _41, 610 tons

All of this coal was loaded and shipped by Shawville over the Ansel Thomas tipple.

24.On September 4, 1964, the last coal was loaded over the Ansel Thomas tipple by Shawville, or anybody else. After that date and prior to April 1965 when the agreements between Shawville and the Thomases terminated, Shawville loaded some of the coal mined from the Ansel Thomas coal lands over the Jefferson Thomas tipple (also referred to as Thomas Brothers tipple, and Hickory No. 1) which was located within one mile to the east of the Ansel Thomas tipple, and slightly further from the leased Ansel Thomas mine sites than the Ansel Thomas tipple. The approximate amounts so extracted and loaded over the Jefferson Thomas tipple were:

1964_„___ 21,230 tons
1965_ 8,676 tons

25. The Jefferson Thomas tipple was comparable to the Ansel Thomas tipple in the facilities it provided for loading coal. It was close enough to plaintiffs’ coal lands to be economically feasible. Ansel Thomas never discussed with its owner the use of the Jefferson Thomas tipple as an alternate loading facility after the Ansel Thomas tipple and sidetrack became inoperative in October 1964.

26. The accounting records of Shawville Coal Company indicate Shawville shipped the following tonnage (including coal from other than plaintiffs’ coal lands) over the Jefferson Thomas tipple at a charge of from 20 to 25 cents per ton for the years shown:

1962- 21, 452. 10
1963- 9,736.80
1964 — _ 62,374.45
1965_ 34,853.05

These records also show that the following tonnages were shipped over the Ansel Thomas tipple at Bells Landing for the years 1962-64. The category A coal is that which was mined by Shawville from lands under lease from the Thomases under the agreement dated May 28, 1962, and the category B coal is that which was not mined from lands covered by that agreement.

Year Category A Category B Total
1962..- 10,894.95 5,317.00 16,211.95
1963- 58,728.55 22,950.00 81,678.55
1964- 26,440.45 13,634.45 40,074.90

27.The strip mining by Shawville from the Ansel Thomas tracts 1 through 4, as designated in the May 1962 coal rights agreement, did not deplete the coal. There remain veins of coal in all four tracts that have not been mined.

28. Shawville did not pay any of the maintenance or operation charges for use of the Jefferson Thomas tipple. The charge of from 20 to 25 cents per ton for use of the Jefferson Thomas tipple, where the shipper did not pay any of the maintenance or operation charges, would be comparable to paying 3 to 5 cents per ton for use of the Ansel Thomas tipple where the shipper paid all of the maintenance and operation charges.

29. Ansel Thomas did not obtain the written consent of the Bailroad to his assignment in May 1962 to Shawville described in finding 20 (b), although required to by the terms of both his lease and sidetrack agreements with the Bail-road referred to in findings 11-14. Shawville was aware of the requirement but did not suggest obtaining the Bailroad’s consent. Shawville’s use of Ansel Thomas’ sidetrack and tipple facilities was known by the Bailroad’s local operating personnel from its inception in 1962, by the Bailroad’s project engineer for the dam in early 1963, and by the Bailroad’s chief engineer at least as early as February 1965. However neither the Bailroad’s Beal Estate Agent in Syracuse, New York, who was responsible for awarding, renewing, terminating, and consenting to the assignment of leases, nor its accounting office, which was responsible for billing and collecting lease rentals, was aware either of Shawville’s use of Ansel Thomas’ sidetrack and facilities from May 1962 to September 1964, or of Ansel Thomas’ assignment of his lease and sidetrack agreements to Shawville. The Bailroad’s Beal Estate Agent was unaware until 1968 that the Ansel Thomas sidetrack and tipple had become inoperative in October 1964, or that the land in question had been deeded to the United States by the Bailroad in June 1966 (finding 39, infra). The lack of knowledge of these matters by the Bailroad’s Beal Estate A gent, was apparently due to the inefficiencies in the communications system of a large organization handling from 3,000 to 4,000 leases of railroad property. The right hand did not know what the left hand was doing.

30. Ansel Thomas first heard of the prospective building of the Curwensville Beservoir about July 1952.

31. As of September 1959 the Railroad contemplated replacing the sidetrack leased to Ansel Thomas with a new sidetrack facility in the vicinity of Bells Landing that would be accessible to roads. He expressed an interest in the relocated sidetrack and expected, but was not offered and did not request, that the Railroad or the Government move his tipple to the new location without cost to him. He made no effort to obtain a lease from the Railroad to the new sidetrack. The proof does not establish Thomas’ contention that the Railroad offered to compensate him for his tipple if it were abandoned and not moved, nor does it establish that the Railroad or the Government ever intended to move the tipple to the relocated sidetrack. Thomas had erected the tipple on the old sidetrack at his own expense originally, and was aware that the Railroad’s practice was not to be responsible for the erection of such facilities on sidetracks leased to shippers. 'It is reasonable to conclude that Thomas was interested in obtaining an agreement to use the new sidetrack only if the Railroad or the Government would transfer his tipple, track, etc., to the new location at no cost to him, and that when he realized that this would not be done he made no effort to obtain an agreement because of the prospective cost of grading the new siding and transferring his tipple and other facilities to it.

32. As part of contract 62-115 a new sideti’ack was constructed within one mile of the Ansel Thomas sidetrack. The new sidetrack had no tipple or loading facilities constructed adjacent to it. It was opened on a first-come first-served basis in April 1964 when general rail traffic was diverted to the new route. Ansel Thomas was aware at all times of the construction of the new sidetrack. The relative locations of the superseded Ansel Thomas sidetrack and the new sidetrack are shown on defendant’s exhibit 30.

33. In the summer of 1963, Glade Fuller, the Railroad’s project engineer for the Curwensville Dam project, visited the site of the new sidetrack with Benson Lingle (of Shaw-ville) and Charles Bell, the trainmaster, and discussed various aspects of the new sidetrack, including its capacity. In the spring of 1964 Fuller attended a meeting at which Lingle discussed Shawville’s requirements for the now sidetrack if it should lease it, and the possibility of Shawville paying for the completion of the sidetrack. On June 25,1964, James P. Weaver, the United States’ resident engineer for the Cur-wensville Dam project, wrote Fuller with respect to the new sidetrack at Bells Landing that “It is the understanding that this siding will be completed by Lingle Coal Co. [i.e., Shaw-ville] and further charge for labor for installation will not result.” On February 24, 1965, C. E. Defendorf, chief engineer for the Railroad, wrote the United States that “Lingle has been sporadically active in trying to set up a business over the new siding.”

34. The new sidetrack was leased on June 13, 1966, by the Railroad to Shawville. Shawville was one of the largest coal operators in the area, and was well known to the local representatives of the Railroad. Charles Bell, the Railroad’s train-master at Clearfield until 1964, went to work for Shawville shortly thereafter.

35. Upon leasing the new sidetrack from the Railroad in 1966 Shawville brought in about 6,000 yards of fill material to build an area approximately 100 feet by 300 feet up to a level so that coal dumped on the fill surface could be loaded on railroad cars by a front end loader. Shawville used the new sidetrack in 1969 and 1970 for loading coal mined from other lands controlled by Ansel Thomas.

36. By September 1964 the main line track of the Railroad leading to plaintiff’s sidetrack area from the east had been removed up to a bridge immediately east of Ansel Thomas’ sidetrack area. The removal of the main line track was halted for 2 or 3 weeks and then resumed to a point west of plaintiff’s sidetrack area where it met the relocated main line track. Sometime during this period the western portion of the sidetrack owned by the Railroad was removed, leaving intact the portion owned by Ansel Thomas, plus a spur to the main line track which remained in place for a brief time so that the Thomas tipple remained technically operable (but not in use) until about the end of October 1964. The evidence is not clear as to the precise operable condition of the sidetrack during this period, but the tipple was last used for loading coal on September 4, 1964. Ansel Thomas’ portion of the sidetrack was removed by the end of 1965. During this period Ansel Thomas complained to the United States and threatened to sue. The United States denied responsibility and advised him to complain to the Railroad. At this time he considered that his agreement with the Railroad for use of the sidetrack had terminated, even though he continued to pay rent under the lease until at least June 1967 (see finding 44, infra). His threat to sue for a taking did not materialize until the present action was filed.

37. Neither the Railroad nor the United States gave Ansel Thomas a formal oral or written notice prior to the removal of the train tracks that the tipple and sidetrack would have to cease operations, but he was aware at all times of the progress of the relocation of the main line of the Railroad because of the dam project, and the attendant elimination of his sidetrack facility.

38. Between July and October 1965 the United States pursuant to contract (finding 10, supra) had the Great Lakes Wrecking Company enter the Ansel Thomas sidetrack area and dismantle, demolish and remove structures and material therefrom. Ansel Thomas was permitted to salvage anything of value he wished from the tipple, such as the crusher, part of the scales, and the remainder of the sidetrack.

39. By deed of March 9,1966, the United States conveyed to the Railroad the land upon which the relocated right-of-way had been built. By deed of June 16, 1966, the Railroad conveyed to the United States its right-of-way within the Curwensville Reservoir area, including the area covered by Ansel Thomas’ leasehold, without indicating any lease encumbrance.

40. In 1964 the only operating tipple in the vicinity of Ansel Thomas’ coal lands other than his tipple that was close enough to be used economically for cleaning, crushing and loading coal from those lands was the Jefferson Thomas tipple referred to in finding 24, supra. Plaintiffs had no financial interest in the Jefferson Thomas tipple.

41. After the Ansel Thomas tipple was made inoperable in October 1964 by the relocation of the railroad in the Beils Landing area, Shawville continued to ship coal mined from the Ansel Thomas coal lands over the Jefferson Thomas tipple until about May 1965. The Jefferson Thomas tipple was comparable to the Ansel Thomas tipple in location (less than one mile to the east thereof), and with respect to the facilities available, such as those for crushing and cleaning, as well as with respect to net hiring cost (see finding 28, supra). The Jefferson Thomas tipple had been connected to the old line of the Bailroad. After removal of the old track the tipple remained in operation by being connected to the relocated new track of the Bailroad. It was out of operation only a few days.

42. The Ansel Thomas sidetrack area has never been flooded by the dam project and, as of the time of trial, would have still been usable had the main line, sidetrack, and tipple not been disturbed by contract 62-115.

43. By May 1962, when plaintiffs leased their coal lands to Shawville (finding 20(a), supra), plaintiffs had stripped all of the coal from tracts 1 to 4 (as shown on defendant’s exhibit 42) that it was economical for them to mine with the equipment they had. Shawville’s equipment was larger and better’Huited to profitable extraction of the coal which remained available. By May 1965 Shawville had mined coal from tracts 1 to 4 to the point it would no longer have been profitable to continue with Shawville’s available equipment. At that time the market for coal was off. These factors together persuaded Shawville to discontinue mining operations under the May 1962 agreement with plaintiffs. Shawville never mined the other tracts covered by the 1962 agreement.

44. The Bailroad (including Penn Central which succeeded New York Central) continued to bill Ansel Thomas for rent under the lease to the abandoned sidetrack until November 1969, and plaintiff continued to pay the rent thereon until at least June 1967, despite the fact that the sidetrack had been inoperable and unused since October 1964. Neither the Railroad’s Beal Estate Agent’s office in Syracuse, New York, which was responsible for the lease, nor the Bail-road’s Operating Department in Eochester, New York, which was responsible for the sidetrack agreement (finding 13, supra,), nor the Eailroad’s Accounting Department, which was responsible for billing and collecting rents under the lease, was aware that the sidetrack area had become inoperable in October 1964, and Ansel Thomas did not inform them but continued to pay rent for reasons which are only speculative. The Eailroad’s Eeal Estate Agent increased the rent by endorsement to the lease effective July 1, 1967, even though the leased property had been deeded to the United States in 1966. As of April 1967 the Eailroad records carried Ansel Thomas as the lessee of the sidetrack, and as of July 1, 1967, Ansel Thomas maintained insurance on the siding in favor of the Eailroad. The Eeal Estate Agent for the Eail-road was not specifically aware that the tracks serving the Ansel Thomas sidetrack had been relocated. However, the Eailroad’s chief engineer was aware of the situation, for in 1965 the Army Engineer Corps recommended to him that the Ansel Thomas lease should be terminated and the sidetrack facilities removed, but there is no evidence that this information was conveyed to the Eailroad’s Eeal Estate Agent or accounting office. Also, the Eailroad’s trainmaster in the area was fully aware that the Ansel Thomas tipple had become inoperative in October 1964, and there is no evidence that he informed the Eeal Estate Agent. The only apparent explanation of this situation is that the Eeal Estate Agent was responsible for from 3,000 to 4,000 leases and administrative inefficiencies in the vast Eailroad organization caused the oversight described.

45. Subsequent to October 1964, Ansel Thomas acquired coal rights in two other nearby tracts of coal land referred to as the Mott and Majesky tracts. He contracted with Shaw-ville under an agreement dated October 7, 1968, for Shawville to strip mine the Mott tract, and to pay Thomas 35 cents per ton royalty. The agreement also provided for a payment of 3 cents per ton for coal which was mined by Shawville on other lands and wheeled over the Mott tract, as well as for a payment of 2 cents per ton for coal mined by Shawville from still other lands. This latter payment was in the nature of a commission to Ansel Thomas for acquiring mining rights for Shawville in these latter lands.

46. The accounting records of Shawville show that under its October 7, 1968, agreement with Ansel Thomas over 20,000 tons of coal was mined in 1969 and 1970 from the Mott tract. During 1971 and through January 1972 over 45,000 tons of coal was mined from the other lands. The coal mined from the Mott tract and from the other lands was shipped over the relocated sidetrack in the Bells Landing area.

47. Ansel Thomas contracted with Shawville under an agreement dated April 24, 1970, for Shawville to strip mine the Majesky tract and part of the Mott tract, and to pay Thomas 35 cents per ton royalty. The agreement also provided for a payment of 3 cents per ton for coal mined by Shawville on other lands and wheeled over these tracts.

48. The accounting records of Shawville show that under the agreement of April 24,1970, over 35,000 tons of coal was mined in 1970 and up to July 1971 when Shawville canceled the agreement. The coal mined from the Mott and Majeskv tracts was shipped over the relocated sidetrack in the Bell» Landing area.

49. Subsequent to May 1965 Ansel Thomas did not lease any of the lands shown as tracts 1-11 on defendant’s exhibit 42, because the price has not been satisfactory and he prefers to lease just enough at a time to meet his living requirements.

50. On March 15,1961, a multiple car rate became effective in the Bells Landing area which benefited coal shippers by allowing a 25 cents per ton reduction from the single car rate for single shipments of not less than 1,000 tons from one loading point to one destination. A further benefit to coal shippers became available on March 30, 1963, when the unit train rate became effective allowing a reduction of $1.50 per ton from the single car rate for shipments of not less than 7,000 tons from not more than two loading points, or $1.25 for more than two loading points. Ansel Thomas was aware of the rate reductions but could not qualify for their benefits because his shipments of coal in 1961-62 were below the minimum required for the lower rates. The purpose of the rate reductions was to compete with truck transportation.

51. During the period from May 1962 to May 1965 Shaw-ville never reported to the Eailroad that it was shipping coal from the Ansel Thomas tipple at Bells Landing. Eather, Shawville showed this coal as having been shipped from either Lingle No. 1 or Lingle No. 10, which were shipping points controlled by Shawville located about 20 miles east and 20 miles west, respectively, of Bells Landing. The Bail-road’s trainmaster at Clearfield was aware at least as early as February 1964 (and probably before) of Shawville’s erroneous reporting practice, which caused the Eailroad to charge Shawville less in tariffs than would have been the case if three shipping points had been shown. An agent of the American Association of Eailroads investigated the wheelage reports for coal shipments in the Bells Landing area in 1964 or 1965 and found that cars were loaded and moved from three locations but were billed as being loaded at only two locations, in violation of the tariff. He reported the violations to the Eailroad’s trainmaster, but there is no record of any action being taken by the trainmaster to halt the violations or demand recoupment on behalf of the Eailroad.

CONCLUSION OF LAW

Upon the foregoing findings of fact and conclusion of law, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover, and the petition is dismissed.

The petition of the United States against Beech Creek Eailroad Company and Penn Central Company (now Penn Central Transportation Company) and the counterclaim of Beech Creek Eailroad Company and Penn Central Company (now Penn Central Transportation Company) are also dismissed. 
      
      
         The term “Railroad" connotes collectively the Beech Creek Railroad Company, the New York Central Railroad which held a long-term lease on the property in dispute from Beech Creek, and the Penn Central Company Into which the New York Central was merged. Beech Creek and Penn Central were motioned In as third-party defendants.
     
      
       H. S. Thomas, who died in 1962, was the father of Ansel Thomas and the other plaintiffs herein.
     
      
       Factual backing for other issues is nevertheless presented in the Opinion, and in detail in the Findings of Fact following it.
     