#### LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. UNITED STATES.

[No. 33213.

Decided May 5, 1919.]

*On the Proofs.*

*Land grant deductions; former adjudication.*— Plaintiff was awarded judgment in another suit for items upon which the account- ■ ing officers applied land grant instead of commercial rates. Plaintiff’s present action includes items antedating the commencement of the former suit, and as to some of which, claim was made in that action but afterward abandoned.

*162*Held:*Items formerly sued on but abandoned can not be again declared upon in a subsequent action, and tiro items accruing before the commencement of the former action were within the allegations of the petition in that case, were properly to be declared upon therein, and, in the absence of a proper showing, can not be declared upon subsequently.

*The Reporter's*statement of the case:

*Mr. Benjamin Garter*for the plaintiff.

*Mr. Horace B.*'Whitman, with whom was *Mr. Assistant Attorney General William L.*Frierson, for the defendants.

The following are the facts of the case as found by the court:

I. The plaintiff is a corporation organized under the laws of the State of Kentucky, owns and operates a system ox railroads and is a common carrier. Portions of plaintiff’s system of railroads were constructed by the aid of grants of lands made by Congress.

II. Before the transactions hereinafter mentioned the railroad companies of the United States generally, including claimant, severally agreed with the Quartermaster General of the United States Army that they would accept for the transportation of Government troops and property the amounts that would be payable by the Government, calculated by way of the cheapest route between the same terminal points. These agreements, known as “ equalization ” agreements, are still generally in effect. The amounts due in settlement have been arrived at by taking the amounts due for the transportation at commercial rates by way of the practicable route between the terminal points of the movement affording the largest proportions of land-grant mileage and deducting from such amounts *SO*per cent of such part of the amounts as would accrue to said land-aided portion.

III. Under the Army regulations in force during the period herein involved and theretofore officers of the Army changing station under orders were entitled to the transportation at the expense of the Government, of a prescribed *163weight of baggage, including household goods and personal effects belonging to them, and graduated according to rank. In addition to such allowance they were also entitled to transportation of professional books and also to the transportation of private mounts intended to be used in the public service, but not in excess of the number for which the officer was entitled to forage. Similar regulations obtained in the Navy Department and in other departments of the public service.

IV. During six years and more before the commencement of this action the plaintiff, when requested, furnished to the United States transportation for the personal effects of Army officers changing station and of other officers and employees, for which it was paid only at land-grant rates. On February 8, 1915, it commenced its action in this court on account of alleged underpayment for such service subsequent to February 10, 1909, and on March 1, 1915, it was awarded judgment in the sum of $3,118.24 on account of deductions in that amount made by the accounting officers of the Treasury in the settlement of its accounts.

Of the service declared upon here a portion was rendered during a period of more than a year and a half before the commencement of plaintiff’s former action and a portion thereof was included in said action, as first brought, and thereafter abandoned.

Since the commencement of that action it has rendered service of like character, for which it has been paid only at land-grant rates, which, as to said service, was $481.11 less than full tariff rates without land-grant deduction. During said period it believed, by reason of decisions of this court, that it was entitled to and it intended to claim full commercial rates for such transportation, and when, after a decision by the Comptroller of the Treasury as to limitations on the use of the appropriations from which payment must be made, it accepted payments on a land-grant basis at the hands of disbursing officers, it did not intend such acceptances to be in full, but at all such times intended to assert its right to further compensation. The decision of this court in the *Baltimore <& Ohio*case had not then been rendered.

*164Per Curiam:

On February 8, 1915, the plaintiff commenced its action in this court, No. 33034, for additional compensation for services of the character declared upon herein. In the petition, filed on said date, it declared upon services “ since the 10th day of February, 1909.” In its bill of particulars it incorporated some items of service which it thereafter, when it filed its amended petition, in effect abandoned by reducing its total demand by the amount of said items and making no proof as to them. On March 1, 1915, it was awarded judgment for $3,118.24, the amount of which, as shown by the findings, “ the accounting officers of the Treasury made deduction from the amounts that were due for said transportation at ordinary commercial rates, on account of land grant.”

In this action items are claimed for as to which the transportation was furnished at intervals during a period of more than a year and a half before the commencement of its former action, and also as to some of which claim was made in that action, but afterward abandoned because for departments other than the War Department, and not supported by any official reports or otherwise.

As to said items antedating the commencement of the former action it. may be said, in addition to the rule of the *Baltimore & Ohio R. R. Co.*case, 52 C. Cls., 468, first, that items then sued for but abandoned can not be again declared upon in another action, and, second, that as to all of the items accruing before the commencement of that action they were within the allegations of the petition in that case, were properly to be declared upon therein, and, in the absence of proper showing, can not be declared upon herein.

As to the items of transportation furnished since the commencement of plaintiff’s former action, it appears that, in the main, they were within the rule in the *B. and O.*case unless the fact that plaintiff had commenced an action in which it asserted its right to be paid for such service at full commercial rates, together with the facts found as to its intention, were sufficient to take them without that rule. A strict construction would probably require that they be held to be within that case, but the court is inclined to and feels justi-*165tied in indulging a presumption that after the commencement of that action the plaintiff was in the attitude of asserting its right to compensation at full commercial rates for such transportation, notwithstanding the method employed in the presentment of its claims, and in holding that its procedure in the matter may be regarded as taking it without the rule of the *B. and O.*case. Indeed, after the decision of this court in the Chicago, *Milwaukee and St. Paul*case, February 8, 1915, the whole situation was radically changed and a presumption that railroads generally were intending, after informed of that decision, to claim all that it had been held they might successfully claim, is not a violent one but one which, in the absence of contravening circumstances, should, perhaps, be indulged.

Judgment for plaintiff under Finding IV for $481.71.

As to the items sued upon herein but not included in said sum, as shown by said finding, the court concludes that plaintiff is not entitled to recover.