(46 S. Ct.) caused by embankment and track, was exclu- | sions thereafter, particularly in the years 4. Appeal and error 882(3)-Where case against railroad company for injuries alleged to result from obstruction caused by embankment and track was based on tort, plaintiff, on review in Supreme Court, will not be permitted to support judgment on theory that company was liable under contract obligation. Where action against railroad company for injuries alleged to have resulted from obstruction of stream, caused by embankment and track was based on tort, plaintiff, after bringing and trying case on such theory, will not be permitted, on review in Supreme Court, to support judgment on theory that company was liable under contract obligation in deed granting right of way. *222 The defendant interposed a plea putting in issue the allegations in the complaint, and by a further plea insisted that the road was under federal control from December 28, 1917, to March 1, 1920, and that no liability attached to the defendant for such of the injuries as occurred during that control. [1] The trial resulted in a verdict and judgment for the plaintiff, and the Supreme Court of Appeals of the state, although petitioned by the defendant to review the judgment, declined so to do, thus making the trial court the highest court of the state in which a decision could be had. American Ry. Express Co. v. Levee, 263 U. S. 19, 44 S. Ct. 11, 68 L. Ed. 140. The case is here on writ of certiorari, and the question presented is whether there was error in holding the defendant liable for injuries done during federal control. The case shown by the evidence differed from that stated in the complaint. Affirma On Writ of Certiorari to the Circuit Court tively and without dispute the proofs disof Wyoming County, West Virginia. Action by A. J. Mullens against the Virginian Railway Company. Judgment for plaintiff, and defendant brings certiorari. Reversed. 221 *Messrs. H. T. Hall, of Roanoke, Va., W. H. T. Loyall, of Norfolk, Va., G. A. Wingfield, of Roanoke, Va., and E. W. Knight, of Charleston, W. Va. (Messrs. M. P. Howard, of Pineville, W. Va., Williams, Loyall & Tunstall, of Norfolk, Va., and Martin & Wingfield, of Roanoke, Va., of counsel), for petitioner. Mr. J. Albert Toler, of Mullens, W. Va., for respondent. Mr. Justice VAN DEVANTER delivered the opinion of the Court. This was an action in a state court in West Virginia to recover for injuries to the plaintiff's land resulting from a nuisance alleged to have been created and maintained by the defendant. The action was begun June 14, 1921. The case stated in the com plaint was to the effect that the defendant constructed in 1904, and operated up to the time of suit, a railroad through West Virginia, a short section of which was located on a right of way acquired for the purpose and extending laterally into a natural stream bounding the plaintiff's land; that this section was constructed by filling in and building up the outer part of the bed of the stream opposite his land and placing the track on the embankment so made; that the embankment and track narrowed the former channel, crowded the current against the bank on the plaintiff's side and exposed his land to overflow and injury; and that on divers occa closed that the railroad was not constructed by the defendant, but by another railway company, and was purchased by the defendant in 1907, after it was completed and in full operation; that after the purchase the de fendant used the embankment and track in the bed of the stream as an integral part of the road, just as it was used before; that the plaintiff, although familiar with the situation, made no complaint of this use or of the presence of the embankment and track in that place; that on December 28, 1917, the United States took possession of the railroad and its appurtenances, and from that time to March 1, 1920, operated and controlled the same to the exclusion of the defendant; that during such operation and control the United States exercised the usual rights of an owner by altering parts of the roadbed, widening tunnels, laying double tracks along parts of the road and using the property as best suited the government's purposes. As respects the section in the bed of the stream the evidence showed that the United States made no change therein, but continued the use theretofore made of it as part of the road; *223 and as respects the *injuries done to the plaintiff's land the evidence, taken most favorably to him, disclosed that, while there was some cutting of the bank on his side soon after the road was constructed and also during the defendant's possession and operation, the chief injuries occurred in February, 1918, and July, 1919, during federal control, when in the course of two unusual freshets portions of the bank were washed away and his land was overflowed and materially injured. At the conclusion of the evidence the defendant, relying on acts of Congress and proclamations of the President bearing on the federal control, requested the court to charge the jury that the defendant was not liable for the injuries occurring during such control and that as to them the finding and verdict must be for the defendant. But the request was refused and the defendant excepted. If the request was well grounded in law, its refusal was plainly prejudicial. [2] While the evidence may have admitted of a finding that the embankment and track in the bed of the stream tended to obstruct and divert the current in such way as to constitute a nuisance, it affirmatively and indubitably precluded a finding that the defendant constructed them or did more than use them as an integral part of a completed road which it had purchased as a going conThus there was no cern from a prior owner. basis on which the defendant could be charged with liability as the creator of the nuisance. If liable at all, it was liable only because it continued the use to which the embankment and track were put by its grantor. There has been much contrariety of decision in the courts of the several states as to whether a purchaser who merely continues a prior use of such a structure may be charged, at the instance of one who has made no complaint or objection, with liability for maintaining a nuisance. The question ordinarily is one of local law to be resolved ac$224 possession and assumed control, at noon on December 28, 1917, of various systems of transportation, including the defendant's railroad and the appurtenances thereof, to the end that they might be operated and utilized in transporting troops, war material and equipment, and in performing other service in the national interest; and he committed the possession, control, operation and utilization of such systems to a Director General designated by him for the purpose. By the Act of March 21, 1918, c. 25, 40 Stat. 451 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, *225 § 31154a et seq.), *Congress confirmed the President's action in thus taking over the transportation systems, made provision for continuing such federal control under the President's direction, and empowered him to exercise his authority in that regard through agencies of his selection. In General Order No. 50, issued October 28, 1918 (U. S. R. R. Administration Bulletin No. 4, Revised, 334), which recited that suits were being brought against railroad companies, the roads of which were under federal control, on causes of action arising during such control for which the companies were not responsible, it was directed that actions and suits based on claims for injuries to persons, damage to property, etc., growing out of the possession, use, control or operation of any railroad by the Director General be brought against that officer, and not otherwise. We heretofore have considered the legis lation, proclamation and order just recited and have held that they provided for a complete possession by the United States and contemplated a single and effective control by federal authority to the exclusion of the private owners (Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135, 148, 39 S. Ct. cording to local decisions, and out of deference to the action of the court below we assume that in West Virginia a complaint or objection is not deemed essential, although no decision on the point by the Supreme Court of Appeals has been brought to our attention. But here it was insisted and the proofs conclusively established that the defendant's use ceased when federal control began, and that the chief injuries occurred dur-502, 63 L. Ed. 897); and that during federal ing the period of that control. The questions of the defendant's legal relation to the road and the operation thereof while under federal control and of its liability for injuries occurring during that period involved a consideration of the nature of that control and of the operation and effect of federal statutes and proclamations bearing on the subject. In short, they are federal questions. By the Act of August 29, 1916, c. 418, 39 Stat. 615, Congress empowered the President, in time of war, to take possession and assume control of transportation systems and to utilize the same in the transportation of troops, war material and equipment, and for other needful or desirable purposes incident to such an emergency. War with Germany was declared April 6, 1917, and with AustriaHungary December 7, 1917, and in both in"Such a radical departure from the estabstances Congress pledged all of the resources of the country to bring the conflict to a suc-lished concepts of legal liability would at least cessful termination. 40 Stat. 1, 429. approach the verge of constitutional power. *It a proclamation declaring his purpose so to should not be made in the absence of compeldo (40 Stat. 1733 [Comp. St. 1918, Comp. St.ling language. Ann. Supp. 1919, § 1974a]), the President took here." Under control "no liability arising out of the operation of these systems was imposed by the common law upon the owner companies as their interest in and control over the systems were completely suspended" (Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, 557, 41 S. Ct. 593, 595 [65 L. Ed. 1087]). In the latter case the contention was made that the act of 1918 should be construed as subjecting the companies to liability for acts or omissions of the agency exercising federal control, notwithstanding they were deprived of all power over the properties, because the just compensation to be paid to them would include any loss resulting to them from such liability. But this court disposed of the contention by saying (256 U. S. 559, 41 S. Ct. 595): *226 There is none such (46 S.Ct.) And, turning to a provision in the act of federal agents. If a duty rested on any one 1918 declaring "carriers while under federal to make any change in them, it rested on the control" liable and suable, the court said federal agents; and if maintaining and using (256 U. S. 559, 41 S. Ct. 595): them without change was a wrong against the plaintiff, it was a wrong committed by those agents, for which no liability attached "Here the term 'carriers' was used as it is understood in common speech; meaning the transportation systems as distinguished from the corporations owning or operating them." And (256 U. S. 561, 41 S. Ct. 596): "This means, as a matter of law, that the government or its agency for operation could be sued, for under the existing law the legal person in control of the carrier was responsible for its acts. * All doubt as to how suit should be brought was cleared away by General Order No. 50, which required that it be against the Director General by name." In Wabash Ry. Co. v. Elliott, 261 U. S. 457, 462, 43 S. Ct. 406, 67 L. Ed. 743, the decision was to the same effect. In North Carolina R. R. Co. v. Lee, 260 U. S. 16, 43 S. Ct. 2, 67 L. Ed. 104, it was held that the government operated the railroads during federal control "not as lessee, but under a right in the nature of eminent domain"; and in Dupont de Nemours & Co. v. Davis, 284 U. S. 456, 462, 44 S. Ct. 364, 366 (68 L. Ed. 788) it was added that: "In taking over and operating the railroad systems of the country the United States did so in its sovereign capacity, as a war measure." to the defendant. [4] The plaintiff also seeks to support the judgment on the theory that the defendant company was under a contract obligation to protect his land from injury, and to make out that obligation he refers to a clause in the deed whereby the defendant's grantor acquired the right of way and to a clause in the deed whereby the defendant afterwards acquired the completed road. But he is not in a position to urge this contention here. The case stated in the complaint was distinctIn principle these decisions are determina- ly in tort. There was no mention of a contive of the question here presented. They tract obligation; nor any reference to either show that federal control did not rest on a of the two deeds. And when the court came conventional arrangement with the owner to charge the jury the plaintiff tendered and companies, but on an exertion of supreme the court included in its charge various ingovernmental power, and that the legisla-structions wherein the case was treated, in tion, proclamation and order before recited contemplated a complete separation of the companies from the roads while under such control, and an absence of responsibility by the companies for losses and injuries resulting from the use, operation, and maintenance of the roads during that period. [3] When the United States took over this road the embankment and track in the bed of the stream were taken over as part of it, *227 and the defendant was deprived of all *power over them while they remained under federal control. Their maintenance and use during that period were exclusively in the hands of 46 S.CT.-34 keeping with the complaint, as one to recover damages for an alleged tortious creation and continuance of a nuisance. After bringing 228 and trying the case on that theory the *plaintiff cannot be permitted on this review to change to another which the defendant was not required to meet below. Other objections to the contract theory are suggested but they need not be considered. We conclude that the court should have instructed the jury, as it was requested to do, that the defendant was not liable for the injuries occurring during federal control. Judgment reversed. (271 U. S. 259) TURNER, DENNIS & LOWRY LUMBER CO. v. CHICAGO, M. & ST. PAUL RY. CO. Decided May 24, (Argued April 26, 27, 1926. 1. Courts 1926.) No. 271. equal protection of the laws, there being no constitutional requirement that such charges or reconsignment privileges shall be the same for all commodities. In Error to the District Court of the United States for the Western District of Missouri. 289-Action to recover of railAction by the Turner, Dennis & Lawry road penalty exacted for detention of car containing interstate shipment of lumber Lumber Company against the Chicago, Milawaiting reconsignment held within jurisdic-waukee & St. Paul Railway Company. Judgtion of District Court irrespective of amount ment for defendant (2 F. [2d] 291), and plaininvolved (Judicial Code, § 24, par. 8 [Comp. tiff brings error. Affirmed. St. § 991]). Suit by lumber company, to recover of railroad penalty exacted for detention of car containing interstate shipment of lumber awaiting reconsignment being one arising under a law regulating commerce, is within jurisdiction of District Court, under Judicial Code, § 24, par. 8 (Comp. St. § 991), irrespective of amount involved. 2. Commerce 89-Shipper's resort to Interstate Commerce Commission, preliminary to action against railroad to recover penalty for detention of car awaiting reconsignment, held unnecessary, no administrative question being presented. Shipper's resort to Interstate Commerce Commission, preliminary to action against railroad to recover penalty exacted for detention of car containing interstate shipment of lumber awaiting reconsignment, held unnecessary; no administrative question being presented. 3. Carriers 26-So-called penalty exacted for detention of cars containing interstate shipment of lumber awaiting reconsignment held in essence an additional demurrage charge, not improperly exacted, having been found reasonable by Interstate Commerce Commission. Railroad's so-called penalty charge of $10 per day, exacted pursuant to tariff duly filed, for detention of car containing interstate shipment of lumber awaiting reconsignment, held in essence an additional demurrage charge, properly exacted, having been found reasonable by Interstate Commerce Commission. 4. Constitutional law 298 (2)—Exaction of demurrage for detention of car containing interstate shipment awaiting reconsignment without further notice than duly filed tariff held not denial of due process. An additional demurrage charge on cars containing interstate shipment awaiting reconsignment, being a tariff provision and not penal law, the duly filed tariff is sufficient notice to shipper, and exaction of charge so provided without further notice is not invalid as taking of property without due process. 5. Constitutional law 242-That additional demurrage charges for detention of cars awaiting reconsignment were imposed only on shippers of lumber held not to result in denial of equal protection of laws. Messrs. Rees Turpin, of Kansas City, Mo., and Edward A. Haid, of St. Louis, Mo., for plaintiff in error. Messrs. O. W. Dynes and J. N. Davis, both of Chicago, Ill., for defendant in error. *260 *Mr. Justice BRANDEIS delivered the opinion of the Court. Turner, Dennis & Lowry Lumber Company brought this action against the Chicago, Milwaukee & St. Paul Railway Company in the federal court for Western Missouri to recover $40 alleged to have been illegally exacted in December, 1921. That sum was collected by the carrier, in accordance with a demurrage tariff duly filed, as a so-called penalty at the rate of $10 a day for the detention of a car containing lumber shipped interstate over the defendant's railroad to the plaintiff at Aberdeen, S. D., and there held at its request for reconsignment. The claim that the charge was illegally exacted rests upon the contentions that imposition of a penalty exceeds the statutory authority conferred upon the Commission; that if the Interstate Commerce Act (Comp. St. § 8563 et seq.), be construed as conferring such authority, the provision is void, because Congress is without power to authorize the Commission to impose it, since prescribing a penalty is a legislative function which cannot be delegated; and that, even if authority to impose a penalty was validly conferred, this particular provision is void, because, by imposing the penalty without notice, there is a denial of due process of law; and that, being imposed only on shippers of lumber, there is a denial of equal protection of the laws. The tariff in question provides: under present emergency, the following addi"To prevent undue detention of equipment tional penalties for detention of equipment will apply: "On cars loaded with lumber held for reconsignment a storage charge of $10 per car will be assessed for each day or fractional part of a day that a car is held for reconsignment after 48 hours after the hour at which free time begins to run under the demurrage rules. *261 Additional demurrage charges on cars containing interstate shipments of lumber awaiting reconsignment, though imposed only on ship*"These charges will be assessed regardless pers of lumber, does not result in a denial of of whether cars are held on railroad hold For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1925) TURNER, DENNIS & LOWRY LBR. CO. v. CHICAGO, M. & ST. P. RY. CO. 531 (46 S.Ct.) tracks or transfer tracts, including con- Co. (No. 216, April 12, 1926), 270 U. S. 512, 46 S. Ct. 392, 70 L. Ed. 709. One cause of undue detention is lack of promptness in loading at the point of origin, or in unloadThe general nature of charges under the ing at the point of destination. Another Uniform Demurrage Code was considered in cause is diversion of the car from its priSwift & Co. v. Hocking Valley Ry. Co., 243 mary use as an instrument of transportation U. S. 281, 37 S. Ct. 287, 61 L. Ed. 722, and by employing it as a place of storage, either Pennsylvania R. R. Co. v. Kittanning Iron at destination or at reconsignment points, & Steel Co., 253 U. S. 319, 40 S. Ct. 532, 64 for a long period while seeking à market for L. Ed. 928. The origin and purpose of the the goods stored therein. To permit a shippenalty charge here in question were dis- per so to use freight cars is obviously beyond cussed in Edward Hines, etc., Trustees, v. the ordinary duties of a carrier. The right United States, 263 U. S. 143, 44 S. Ct. 72, 68 to assess charges for undue detention existL. Ed. 216. The nature and scope of the re-ed at common law. Now, they are subject, consignment privilege are stated in Recon- like other freight charges, to regulation by signment Case, 47 Interst. Com. Com'n R. the Commission. Demurrage charges are 590; Reconsignment Case No. 3, 53 Interst. thus published as a part of the tariffs filed Com. Com'n R. 455; Stetson, Cutler & Co. pursuant to the statutes. v. New York, New Haven & Hartford R. R. Co., 91 Interst. Com. Com'n R. 3. This penalty charge was attacked as unreasonable and unjustly discriminatory in American Wholesale Lumber Association v. Director General, 66 Interst. Com. Com'n R. 393, and there held by the Interstate Commerce Commission to be neither unreasonable nor otherwise unlawful.1 *262 All demurrage charges have a double purpose. One is to secure compensation for the use of the car and of the track which it occupies. The other is to promote car efficiency by providing a deterrent against undue detention. Pennsylvania R. R. Co. v. Kittanning Iron & Steel Co., 253 U. S. 319, 323, 40 S. Ct. 532, 64 L. Ed. 928; Edward Hines, etc., Trustees, v. United States, 263 U. S. 143, 145, 44 S. Ct. 72, 68 L. Ed. 216. The charge here in question, although called a penalty, is in essence an additional demurrage charge, increasing at a step rate. Such additional charges increasing with the length of the *263 [1, 2] By stipulation in writing a jury was waived, the case was submitted on agreed facts, these were adopted by the court as a special finding of facts, and judgment was entered for the defendant on November 8, 1924, 2 F. (2d) 291. The District Court had jurisdiction under paragraph 8 of section 24 period of detention were introduced in reof the Judicial Code (Comp. St. § 991), de- spect to some cars by the National Car Despite the small amount, because the suit aris- Charges, sections A and B. They were widemurrage Rules. See Rule 7, Demurrage es under a law regulating commerce. Louis-ly applied while the railroads were under ville & Nashville R. R. Co. v. *Rice, 247 U. S. 201, 38 S. Ct. 429, 62 L. Ed. 1071. Preliminary resort to the Interstate Commerce Commission was unnecessary, because no administrative question is presented. Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U. S. 285, 42 S. Ct. 477, 66 L. Ed. 943. The case is here on direct writ of error under section 238 of the Judicial Code (Comp. St. 1215), prior to its recent amendment, because of the constitutional questions involved. [3] The efficient use of freight cars is an essential of an adequate transportation system. To secure it, broad powers are conferred upon the Commission. Compare United States v. New River Co., 265 U. S. 533, 44 S. Ct. 610, 68 L. Ed. 1165; Avent v. United States, 266 U. S. 127, 45 S. Ct. 34, 69 L. Ed. 202; United States v. P. Koenig Coal 1 During the period of federal control this tariff was filed with the Interstate Commerce Commission, as provided by law, to be effective October 20, 1919. After the termination of federal control the defendant and other railroads continued to maintain the provision in their published tariffs until March 13, 1922, when it was canceled in pursuance of the decision and order of the Commission in American Wholesale Lumber Co. V. Director General, 66 Interst. Com. Com'n R. 393. federal control. See General Orders of the Director General, Nos. 3, 7 and 7a; Bulletin No. 4, Revised (1919) pp. 146, 151; Supplement to Bulletin, Revised (1920) p. 44. The power to impose such charges, if reasonable, is clear. Those here in question have been found by the Commission to be reasonable. It is not claimed that there was no evidence to support the finding. Compare Louisiana & Pine Bluff Ry. Co. v. United States, 257 U. S. 114, 42 S. Ct. 25, 66 L. Ed. 156. [4, 5] The further contentions are that there was a denial of due process of law because the so-called penalty was imposed without notice; and that there was a denial of equal protection of the laws, because the charge was applicable only to cars loaded with lumber. The demurrage charge is, however, a tariff provision and not a penal law, and thus, the tariff duly filed charges the shipper with the requisite notice. And neither the Constitution nor the rule of reason requires that either freight or demurrage charges or the reconsignment privilege shall be the same for all commodities. We find no reason to disturb the basis of the Commission's classification. Affirmed. |