
    JAMES A. BAKER, RECEIVER OF THE INTERNATIONAL & GREAT NORTHERN RAILWAY CO., v. THE UNITED STATES
    [No. B-158.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      Dent Act; implied contract; spur to aviation camp; voluntary act.— See Balter, Receiver, etc., v. United States, ante, p. 887.
    
      The Reporter’s statement of the case:
    
      Mr. Claudian B. Northrup for the plaintiff. Mr. Samuel B. Dabney was on the briefs.
    
      Mr. Edwin 8. McGrary, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. At the times named in the petition the plaintiff, James A. Baker, was and still is receiver of the International and Great Northern Railway Company, duly appointed by the District Court of the United States for the Southern District of Texas, Houston Division, in the case of the Central Trust Company of New Torh v. International and Great Northern Railway Company et al., and as such receiver operated a system of railroads engaged in interstate commerce, transporting freight and passengers over such system to and from Everman Station, State of Texas, and other points.
    II. On August 31, 1911, A. G. Whittington, general manager of the International and Great Northern Railroad, received the following telegram from J. W.'Everman, of the American Railway Association, who was not an officer of the United States:
    “Aviation camp has been located about 10 miles south of Fort Worth, halfway between the M., K. & T. and your line, north of Everman station. Captain in charge wishes to know if you will build a spur to serve the same, which track will be about a mile long. Can you send a representative here by tomorrow morning, and I will go with him to the captain in charge and go over the matter in detail. The first camp has been located north of town, and the Denver has agreed to put in track, but the third camp has not been located. Captain in charge is anxious to get definite advice from you as soon as possible about the building of the track. M., K. & T. have expressed willingness to put in track, but I think captain in charge prefers location nearest your main line.”
    To this telegram A. G. Whittington replied by telephone to J. W. Everman that “ we were laying material and would start construction of the track at once,” and that he would be there.
    III. Lieutenant Samuel P. Burnham, of the United States Army, was in charge of the construction of an aviation field near Everman, Texas, known as Taliaferro Field, No. 2, and also later as Barron Field, and in the construction of said aviation field he was acting under the authority of the Secretary of War.
    Mr. A. G. Whittington after the receipt of the telegram quoted in Finding II went to Everman, Texas, and in company with Captain Burnham went over the route of the proposed spur track, and work on said spur was immediately begun by the officers and employees of the plaintiff. Nothing was said by Captain Burnham or by any officer of the United States as to who would pay for the construction of this spur. Nor did Captain Burnham have any authority from the Secretary of War or the President to contract for the budding of said spur.
    This spur track was built by and remained the property of the plaintiff. The plaintiff was benefited by the building of this spur track. It carried many passengers and a large tonnage over it, and at all times exercised control over it. No charge was made or paid for hauling freight or passengers over the said spur track over and above the regular tariff rates applicable to and from Everman, Texas.
    IY. No officer of the United States took any part in the preliminary work for the building or construction of ihis spur track, nor did any officer of the United States take any part in locating said spur track, except that Captain Burn-ham designated the point where it should enter upon the Government reservation.
    After work had proceeded for about three days the work was stopped by an injunction order obtained by a property owner, whereupon Captain Burnham took charge of the construction and continued said work as a war measure, but the plaintiff paid for the cost of construction, and the laborers engaged in said construction were employed and paid by plaintiff.
    Y. The cost of the construction of said spur track was $16,041.35, and the salvage value of the materials from said spur track when the same were removed was the sum of $5,823.35, leaving a balance of $10,218, for which sum the plaintiff sues. The track involved in this suit is all outside of the Government reservation. No part of this claim has been paid by the United States.
    YI. The plaintiff presented its claim for the sum of $16,041.35 on June 30, 1919, before said spur track was scrapped to the War Department under the provisions of the act of March 2, 1919, commonly known as the Dent Act. The claim of the plaintiff was denied on March 24, 1920, by the claims board, Transportation Service, War Department, and the Secretary of War sustained the action of said board and dismissed the claim.
    The court decided that plaintiff was not entitled to recover.
   MEMORANDUM BT THE COURT

The spur track for the construction of which suit is brought was built by the plaintiff and remained its property and was used in its business.

The track was built as the result of a telegram from J. W. Everman to the general manager of the plaintiff’s road. Mr. Everman was not an officer of the United States and consequently had no authority, and did not claim to have authority, to create a liability upon the Government for the construction of this track, and the plaintiff’s agents well knew this fact. Neither did Captain Burnham have authority to contract for the construction of this track; he claimed no such authority, and no action of his indicated that he was undertaking to exercise it; on the contrary, he did and said nothing which could be by possibility construed into a promise to pay or from which a promise could be implied. The plaintiff, itself at no time suggested that it expected to be compensated for tbe work done. As a matter of fact, tbe plaintiff was benefited by tbe construction of tbis spur track. It appears from the telegram set out in the findings that if tbe plaintiff had not built tbe spur track to the aviation field it would have been built by the M., K. & T. Railroad, a rival road. Tbe plaintiff by this construction was enabled to and did carry over its road many hundreds of passengers and many tons of freight which otherwise would have been carried by another carrier.

There was no undertaking by the Government to pay for this spur track, nor from the circumstances can we hold that a promise to do so was implied. Atlantia City R. R. Co. v. United States, 58 C. Cls. 215, 223; Baltimore & Ohio R. R. Co. v. United States, 261 U. S. 592, 596, 597.

The petition of the plaintiff must be dismissed

Graham, Judge, took no part in the decision of this case.  