#### PHILADELPHIA, BALTIMORE & WASHINGTON RAILROAD CO. v. THE UNITED STATES

[No. A-113.

Decided November 1, 1926]

*On the Proofs*

*Contract; construction of trades on camp site.*— Where an authorized officer of the Army enters into an agreement with a railroad company whereby the company is to construct certain tracks at the site of an Army camp, at its own expense, all tracks in addition thereto to be constructed at the expense of the Government, and additional trackage is constructed by the company, it may recover from the Government the reasonable cost thereof.

*The Reporter's*statement of the case:

*Mr. G. Bowdoin Graighill*for the plaintiff. *Messrs. Frederic D.*McKenney, *John S.*Fla/nnery, and *Gaesar L. Aiello*were on the briefs.

*Mr. Per ay 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 plaintiff, the Philadelphia, Baltimore and Washington Eailroad Company, is a railroad corporation engaged in interstate commerce, duly organized and existing under the laws of the States of Pennsylvania, Delaware, and Maryland and authorized by various acts of Congress to operate in the District of Columbia.

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, Maryland. This site was situate on the electric line of the Washington, Baltimore and Annapolis Eailroad. It was finally selected, *538find 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 and 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 10 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-anyone 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. *tor*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.”

IY. On June 20, 1917, General Bell met with Mr. W. W.. Atterbury, vice president of the Pennsylvania Railroad. Company and also vice president of the Philadelphia, Baltimore and Washington Railroad Company, and Mr. A. W. Thompson, vice president of the Baltimore and Ohio Railroad Company, for the purpose of discussing the location ofi the cantonment at Annapolis Junction or Admiral (after-*539wards known as Camp Meade) with particular reference to the amount of trackage which the railroads would construct-As a result of this meeting the following agreement was signed. The agreement was 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, June W, 1917.*

It is understood and agreed between General Bell, representing the War Department, and Mr. W. W. Atterbury, representing the Pennsylvania Bailroad Company, and Mr. A. W. Thompson, representing the Baltimore & Ohio Bail-road Company, that at the site for a divisional training camp, known as Annapolis Junction or. Admiral, these railways will construct a joint track connecting with the Philadelphia, Baltimore & Washington Bailroad at Odenton, and with the Baltimore & Ohio Bailroad at Annapolis Junction, a distance of approximately 6 miles, and will, if necessary, construct in addition thereto, not exceeding 2 miles of sidings or switches parallel to the main connecting line, at their own 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. Immediately after approval of the site for the cantonment the plaintiff purchased a right of way from Odenton to Bogue Harbor Bun and commenced the construction of its tracks. It was necessary to make a very heavy cut just east of the boundary mark of the cantonment and the material from this cut was used in making a fill just west of the boundary line of the cantonment but on the right of way purchased and owned by the plaintiff. The crossties used were partly new and partly secondhand, but the rails were re-lay or secondhand rails. The distance from Odenton to Bogue Harbor Bun, where connection was made with the Baltimore and Ohio Bailroad, over the tracks of the Washington, Baltimore and Annapolis Electric Bailroad Company, was 8,880 feet. The distance from Odenton to the eastern boundary of the cantonment was 2,370 feet, and the distance *540over the plaintiff's right of way from the eastern boundary line of the camp site to a point near Eogue Harbor Eun was 6,510 feet. This was the main track from Odenton to Camp Meade. It ran parallel and adjacent to and on the north side of the right of way of the Washington, Baltimore and Annapolis Electric Line.

VI. At the same time the plaintiff constructed on its own right of way and to its main line to the camp a passing siding of 3,003 feet, 1,678 feet of which is west of the eastern boundary of the cantonment and extends west of the eastern boundary of the reservation for a distance of 1,325 feet to Odenton. No part of this siding was on Government lands, and it directly served no particular warehouses or other public utility upon the camp site.

VIII. (1) The plaintiff also constructed at a cost of $2,200.97 a water station to enable the shifting engines to replenish their water tanks. Without this water station it would have been necessary for the engines to 'go to Bowie, a station four miles from Odenton, on the main line. The water for the tub was supplied by the Government.

(2) An ash pit was constructed at a cost of $185.08 to enable the engines to have their fire boxes cleaned to avoid the risk of cleaning on the tracks where the ties could be burned.

(3) A car inspector’s building was constructed at a cost of $32.97 to house the tools and oils of the car inspector who was engaged in looking after the cars when they came in and before they went out.

(4) A sand box was put in at a cost of $72.77 in order to save the necessity of the shifting engines going to the main line for sand.

(5) A coaling platform was built at a cost of $38.41 in order to enable the engines to coal easily and promptly.

Plaintiff also constructed ticket offices at a cost of $125.03 for the sale of tickets to the soldiers when going on leave. These offices were solely for the passenger traffic of the plaintiff.

An old schoolhouse on the reservation was purchased from the Government by plaintiff for $500.00, moved across *541the tracks, and converted into a freight house for less-than-carload lots and used by the American Bailway Express Company for its business. The total cost, exclusive of the building, was $1,153.21. The platform of the freight house was extended at an additional cost of $100.38. To this station a ladder and spur were constructed, which served the coal bin and platform, ash pit, water tank, and sand box, as well as the car inspector’s building. The ladder also served the tracks to the Government warehouses.

All of the above-enumerated structures were built on the reservation. None of them, served any Government utility. All were solely for the use and convenience of the plaintiff, were not ordered by any officer with authority, but the Government acquiesced in and permitted their construction on the cantonment site.

VIII.The following tracks were constructed by the plaintiff:

Tracks on railroad right o£ way: Feet

Main line from Odenton to Rogue Harbor Run_8, 880

Siding to main line_8, 003

Tracks on cantonment lands:

Track No. 1 (warehouse)_1,700

Track No. 2 (warehouse)_1,650

Track No. 4 (warehouse)_1,900

Connection between tracks Nos. 2 and 4.

Track on coal trestle *(Yz*of)_ 612

Ladder and spur L. C. L- 730

Siding for Field Signal School_ 130

IX. The tracks constructed by the plaintiff for which the Government is liable under the contract entered into by it with the plaintiff amount to 7,658 feet. The reasonable cost thereof to the plaintiff was the sum of $35,063.64.

X. The claim was submitted by the plaintiff to the Secretary of War. The claims board, transportation service, awarded the plaintiff the sum of $20,794.65 on June 25, 1920. The appeal section allowed the plaintiff the sum of $22,706.14. The Secretary of War awarded the plaintiff the sum of $20,794.65.

The court decided that plaintiff was entitled to recover.

*542Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover the sum of $138,687.15. This 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 issues herein involved are 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 have 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 $35,063.64. It is so ordered.

Graham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.

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