Brown v. Southern Ry. Co.

Citations

• 187 F. 481
• 109 C.C.A. 333
• 1911 U.S. App. LEXIS 4521

Syllabus

<p>Railroads (§ 216*) — Switch Tracks — Maintenance—Contract—Instruction —“Shall and May.”</p> <p>Complainant owned a coalyard, through which defendant operated a switch track. The railroad claimed to own the rails and ties, and, complainant refusing to concede that such was the fact, negotiations were entered into for the execution of a contract, in which complainant should concede to the railroad company a right of way and its ownership of the track, in consideration of which the railroad company should maintain the track and afford complainant service. Complainant having refused to route all possible traffic over defendant’s road, further negotiations resulted in a contract by which, in consideration of a dollar paid by tlie railroad company, complainant admitted that it was the lawful owner of the track, agreeing that defendant, its successors and assigns, “shall and may hare the right” to maintain and operate the side track until complainant. his heirs and assigns, shall serve on the railway company 60 days’ notice to remove the same. This contract was signed only by complainant and certain trustees under a mortgage deed to the property, and not by the railroad company. Hold, that tlie words “shall and may” as so used should not be construed as implying an absolute obligation on the part of the railway company, and that complainant was not entitled to restrain the railroad company from refusing to maintain the track.</p> <p>(Ed. Note. — For other cases, see Railroads, Cent. Dig. § 733; Dec. Dig. § 216.*]</p>