#### CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. v. THE UNITED STATES

[No. B-200.

Decided November 16, 1925]

*On the Proofs*

*Dent Aet; implied contract; spur to military camp; voluntary*act.— Where permission is granted plaintiff by a constructing quartermaster to build a spur over land not owned by the Government, to a military camp, and there is no request therefor or promise to pay, the plaintiff is not entitled to reimbursement for any sums espended by it in partially performing the work.

*The Reporter"1 s*statement of the case:

*Mr. Raymond M. Hudson*for the plaintiff.

*Mr. Edwin 8.*McCrary, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is a duly created corporation under the laws of the State of Wisconsin, engaged in the operation *170of a railway system; on June 15, 1917, and for some time prior thereto, the plaintiff owned all of the stock of the Tacoma Eastern Railroad Co., and the officers of the plaintiff were also the officers of the Tacoma Eastern Railroad Co.; the contracts for the work done on the spur tracks hereinafter described were made in the name of the plaintiff; on July 1, 1919, the. Tacoma Eastern Railroad Co. and the plaintiff were merged under the laws of the States of Wash-, ington and Wisconsin, and all property rights, as well as all other rights and assets of the Tacoma Eastern Railroad Co., thereby became the property of the plaintiff.

II. During the summer of 1917 a military camp known as Camp Lewis, near American Lake, in Pierce County, State of Washington, was in course of construction. The camp was located on a tract of about 50 acres. Surrounding this was a tract of considerable acreage (the number of acres does not appear), portions of which were undergoing at this time condemnation proceedings by parties other than the Government in furtherance of a plan by which, when title to the whole acreage was acquired, it would be presented to the Government with the expectation that a permanent military camp would be located thereon. There is no satisfactory proof that the Government had title to or right in the acreage surrounding the camp.

III. The track of the Northern Pacific Railway ran near the camp and was supplying its transportation needs. Beyond its track, and on the opposite side of the camp, about *5y2*miles distant, near an extreme part of the acreage, ran the track of the Tacoma Eastern Railroad.

IV. The plaintiff desired to build a spur from the track of the Tacoma Eastern Railroad across portions of said acreage to .the camp. About September, 1917, a representative of the plaintiff approached one Captain Stone, who was constructing quartermaster at said camp and whose duties and authority were confined to laying out and constructing the camp, and asked permission to run a spur from a point on the track of the Tacoma Eastern Railroad, 5% miles distant, to the camp. Captain Stone granted permission, but did not request or promise to pay for the construction, and stated that he could not request or promise to pay for it and *171that the plaintiff could not expect to be reimbursed by the Government for the cost of construction. This was understood between the parties, and plaintiff knew that Captain Stone had no authority to make any agreement, and no contract of agreement was entered into, for the construction of this spur.

V. Thereupon, in September, 1917, plaintiff commenced the construction of the spur and performed certain portions of the work for which it paid the contractor the sum of $4,708.16. Plaintiff also made expenditures on its own account for engineering and other matters in connection with the work, including transportation of ties and other materials, amounting to $4,859.12, making a total expenditure of $9,567.28.

VI. Shortly before December 1, 1917, the work not having progressed as fast as plaintiff expected, for various reasons, among which was its failure to get permission from the Northern Pacific Railway to cross its tracks, plaintiff’s representative approached said Captain Stone and asked him if it would be satisfactory to the department if work was discontinued. Captain Stone interposed no objection, and the work was discontinued about the 1st of December and never resumed. At this time the camp was fully organized and had three railroads serving its transportation needs. It does not appear that the work done on this spur, so far as it went, was on land owned or controlled by the Government, nor does it appear what part of it, if any, was on plaintiff’s right of way. It is not shown that any of the money expended was on account of work done on land owned or controlled by the Government. All the work done on this spur, and the contract therefor, were in the name of the Tacoma Eastern Railroad Co., and all expenditures in connection therewith were made by plaintiff. The Tacoma Eastern Railroad Co. kept no account of these expenses or the surveys of any of the work.

The spur was located across the line of the Northern Pacific Railway Co., and had to be so laid to reach the camp. That company having refused to grant plaintiff the right to make this crossing, it became necessary to acquire the right by condemnation proceedings. The suit for this *172purpose, however, was dismissed after construction of the road was discontinued.

The court decided that plaintiff was not entitled to recover.

GRAHAM, Judge,

delivered the opinion of the court:

The plaintiff sues to recover certain sums expended by it in the work of partially excavating and grading for a spur track which was to connect one of its branch lines, the Tacoma Eastern Eailroad, with a military camp of the Government, known as Camp Lewis, in Pierce County, Wash., then under construction. After part of the excavating and grading had been done, plaintiff voluntarily discontinued the work and never resumed it. No ties or rails were ever laid on the land excavated and graded.

The camp was being built upon a tract of about 50 acres, near American Lake and near the tracks of the Northern Pacific Eailway, which line at the time plaintiff began construction of the spur was supplying all the transportation needs of said camp. At the time of discontinuance of work three railroads were meeting these needs. It does not appear what right or title the Government had to the 50 acres on which the buildings were erected. It may be assumed for present purposes that it owned the tract. Surrounding these 50 acres was a very much larger tract, some of which was undergoing condemnation proceedings by parties other than the Government. It was proposed, when title to this acreage was acquired, to present it to the Government with the expectation that a permanent military camp would be erected thereon. It is not apparent what, if any, title the Government had acquired in this land at the time the work on this spur was performed or thereafter.

In this situation a representative of plaintiff asked the constructing quartermaster at said camp, whose duties and authority were confined to superintending the construction work, for permission to build the spur into the camp. Pei'mission was granted, with the understanding that he, the constructing quartermaster, did not request, and had no authority to request, the construction, had no authority to, and did not promise, on behalf of the Government, to pay for its construction, and that the parties could not expect to be reimbursed by the Government. With this under*173standing plaintiff began the work of construction through a contractor, and before the discontinuance thereof had expended certain sums of money which appear in the findings.

Plaintiff is seeking to recover on the basis of a contract with the Government for the construction of this spur. It had no contract with the Government. There is no proof of a contract, either express or implied, on the part of the Government to pay for the construction of the spur. Plaintiff was not requested by any representative of the Government having authority to do so to construct the spur. It took the initiative by requesting permission for its construction. The permission was granted with the understanding, as stated above, that the constructing quartermaster could not request the construction and had no authority to do so, did not promise that the Government would pay for it and had no authority to make such a promise, and that the plaintiff could not expect to be reimbursed by the Government for its expenditures in constructing the spur. No contract has been shown which binds the Government to pay as claimed, and the petition should be dismissed. It is so ordered.

Hay, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, Ch*ief*Justice, concur.