Certiorari to the circuit court of appeals for the fifth circuit to review a judgment of that court affirming one in favor of the West Coast Naval Stores Company (hereinafter called the plaintiff), against the railroad company (hereinafter called the defendant), for damages for refusing to permit the plaintiff to use the wharf of defendant at Pensacola for the [198 U.S. 483, 484] transportation of plaintiff's property, as stated in the declaration.
The action was brought in the circuit court of the United States for the northern district of Florida.
The plaintiff's declaration contains two counts, which are substantially the same, and it is therein averred that the plaintiff is a citizen of Florida and the defendant is a citizen of Kentucky, and that the latter is a common carrier, and carries goods into Pensacola over its railroad, and, among them, the goods of the plaintiff. The course of business between the two companies has been for the plaintiff to obtain transportation of its turpentine and rosin from its yard near Mpensacola, and its warehouse in that city, by means of a switch, built for that purpose by the defendant, to defendant's main line, and thence to the wharf of defendant (which plaintiff alleged was a public wharf), by means of the cars and upon the railroad of the defendant. The wharf extended into the bay of Pensacola, and was used by defendant (and by persons bringing goods over the defendant's railway to and into Pensacola) for the purpose of shipping such goods from the wharf to vessels destined for other ports. After defendant had transported the goods of the plaintiff to the wharf of defendant, the plaintiff had been accustomed to ship to other ports by vessels, with the managers of which plaintiff had contracts of carriage; that in the midst of the prosecution of such business defendant had notified plaintiff that it would thereafter refuse, and it did thereafter refuse, to allow plaintiff to transport its goods to the wharf for the purpose of there loading them on such vessels as above mentioned, and refused to permit the wharf and railway of defendant to be used in the prosecution of plaintiff's business, in so far as the prosecution would involve the use of the vessels chosen by the plaintiff for the shipment of the goods from Pensacola, to the damage of the plaintiff, as set forth in the declaration.
The defendant filed several pleas to this declaration, and the plaintiff demurred to them, which demurrer was overruled [198 U.S. 483, 485] by the circuit court. Upon writ of error the circuit court of appeals reversed that judgment (57 C. C. A. 671, 121 Fed. 645), and when the case came down the defendant withdrew all former pleas and filed in the circuit court another plea, as follows:
This plea was in substance the same as the third plea which defendant had theretofore interposed, and which the circuit court of appeals had held bad. The plaintiff again demurred. The circuit court sustained the demurrer, in accordance with the decision of the circuit court of appeals, and gave leave to the defendant to amend as it might be advised. The defendant refused to amend. Judgment was then entered against it by default, and direction given to proceed with the case for the purpose of having plaintiff's damages assessed. A trial by jury upon the question of damages was had, and the jury found a verdict for the plaintiff for $1,000, upon which judgment was duly entered.
The defendant then sued out a writ of error to the circuit court of appeals for the fifth circuit, which court, adhering to the views expressed by it on the former appeal, affirmed the judgment (62 C. C. A. 681, 128 Fed. 1020), and the defendant thereupon applied to this court for a writ of certiorari, which was granted, and the case is now here. [198 U.S. 483, 488] Messrs. William A. Blount, and A. C. Blount, Jr., for petitioner.
[198 U.S. 483, 491] Mr. John C. Avery for respondent.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:
When this case was first before the circuit court of appeals, it was stated in the opinion which was then delivered that the case showed that the railroad company was in possession of a large wharf, built at its own expense, 'on the extension of a public street in the city of Pensacola, into the deep waters of the harbor of the city.' On looking at the record before us, we find in the pleadings no averment that the wharf in question was in fact built as such an extension. The statement of facts preceding the opinion of the circuit court of appeals shows, however, that there were replications filed to the various pleas, one of which replications contained the averment that the wharf was an extension of a street of the city of Pensacola, into the bay of Pensacola, for a distance of more than 500 yards, all within the limits of the city of Pensacola, and maintained by the defendant by authority of the city. Hence the statement in the opinion was perfectly [198 U.S. 483, 493] correct. Subsequently to the decision of the circuit court of appeals, and after the case was remanded to the circuit court, it appears by the record before us that the defendant withdrew all its former pleas, and filed the single plea set forth in the foregoing statement of facts. To this plea no replication was filed. Counsel for the plaintiff admits that neither the declaration nor the plea contains any averment that the wharf in question was an extension of a public street. It we assume, what is without doubt the fact, that the wharf was built at the foot of a public street in the city of Pensacola, and was carried out into the deep water of the bay some hundreds of yards, we must also assume the fact mentioned in the brief of the defendant, and substantially set forth in the former replication, that the building and maintaining of the wharf were authorized by authority from the city of Pensacola, and also from the state of Florida. These facts will therefore be taken as admitted, in order that the case may be discussed upon the facts as they really exist.
Counsel for plaintiff now asserts, and we assume, that the gravamen of plaintiff's complaint is not that the defendant would not transport plaintiff's goods, or any part of them, on defendant's lines, from the wharf in question, 'but only that defendant would not permit plaintiff's goods to be at, from, or by means of defendant's wharf loaded upon, or delivered to, the said vessels,' with the managers of which plaintiff had contracted to have its goods transported to other ports. This means of transportation, by such vessels as plaintiff should choose, is asserted by it as a right, because it contends that the wharf of defendant, under the averment to that effect in the declaration, and not denied, in terms, in the plea, taken in connection with the facts stated in such plea, was a public wharf, or that, at least, the defendant had devoted it to a public use. The defendant in its plea sets up facts which it avers show the wharf was not a public one. The plaintiff insists that the plea shows that the defendant built and used the wharf itself and permitted a large part of the public to [198 U.S. 483, 494] use it, including, at any rate, those who were engaged in traffic handled by vessels belonging to regular lines running in connection with the defendant, and also including vessels belonging or consigned to the Gulf Transit Company, an agent of defendant, together with those who were using the wharf under some special arrangements between them and the defendant. All this, the plaintiff contends, amounted to making the wharf a public one, or at least that it thereby became a facility, to the use of which the public as a public had a right on payment of reasonable compensation. If plaintiff chose to employ, for the further transportation of its goods, the vessels with the managers of which the defendant had some business arrangement or contract, it is not denied that the defendant would and did permit such transportation. In this respect there is no allegation that the plaintiff did not have equal facilities with all other shippers. Defendant's plea avers that it did give to plaintiff the same facilities for shipping its goods over defendant's wharf that it gave to any or all shippers. In brief, the fact seems to be that the only complaint of the plaintiff is that defendant will not permit competing vessels to make use of its wharf for the purpose of such competition.
We do not see that the fact that the wharf was erected under authority from the city, at the foot of a public street of the city, makes any material difference in the character of the wharf, or that the right of plaintiff to select its own vessels to continue from that wharf the transportation of its goods is, on that ground, enhanced, or the right of defendant to control the wharf for its own use when erected is thereby diminished. The right to erect the wharf was granted by the proper authorities, and, so far as the record shows, it was granted without imposing any conditions as to its use by the public. We think the plaintiff had no right of access to the wharf founded simply upon the fact that it was erected under proper authority, in the harbor of Pensacola, and at the foot of one of the public streets of that city. The question of the rights of plaintiff must really [198 U.S. 483, 495] turn upon the character of the use of the wharf, whether it is public or private.
The argument upon the part of plaintiff is, in substance, this: True, defendant has erected a wharf, which is not in fact intended or used as the terminus of its road at Pensacola, adequate yards and depots having been furnished by the defendant for all goods and passengers destined to Pensacola only; but the wharf has been erected to enable defendant to more conveniently carry out contracts for transportation beyond its own line, which it was not compelled to make, and which it could carry out by such agencies as it chose; but the plaintiff, having goods destined for points outside of Florida, insists upon its right to use the road of defendant, not to carry these goods to Pensacola, but to defendant's wharf, so that plaintiff may there transfer them into vessels which it has arranged to take them; in order to do this it is necessary that defendant be compelled to share its possession of its own wharf with the managers of these other vessels; for this possession plaintiff is prepared to make reasonable compensation. The right on the part of the plaintiff is urged as the result of the action of defendant in permitting the use of the wharf as stated in the plea. By such use it is contended that the defendant in effect dedicated the wharf to the public; or, at least, has granted to the public an interest in the use of the wharf.
We are of opinion that the wharf was not a public one, but that it was a mere facility, erected by and belonging to defendant, and used by it, in connection with that part of its road forming an extension from its regular depot and yards in Pensacola, to the wharf, for the purpose of more conveniently procuring the transportation of goods beyond its own line, and that defendant need not share such facility with the public or with any carriers other than those it chose for the purpose of effecting such further transportation.
Neither the public nor the plaintiff had such an interest in the wharf as would give to either the right to demand its use on payment of reasonable hire. Nor was the wharf a depot [198 U.S. 483, 496] or place of storage of the defendant for goods to be delivered at or taken from the city of Pensacola for transportation by rail. The defendant had adequate depots and yards in that city for the proper storage of all merchandise committed to it for delivery at Pensacola, or there received, to be transported therefrom by defendant. All consignees of goods at Pensacola had equal facilities for obtaining them there. Although not bound originally to carry goods beyond its own terminus at Pensacola, yet the defendant might agree to do so, and it had the right, when duly authorized by the proper authorities, to construct facilities to enable it to continue such transportation beyond the line of its railroad, by such other carriers as it might agree with. The city or state authorities, in granting the right to erect such facilities, might, of course, have attached such conditions as they thought wise; but, in their absence, neither the public nor this plaintiff, as the owner of goods, would have the right, on this state of facts, to go to the wharf with vessels for the purpose of continuing transportation of goods in competition with the defendant. The defendant never became a common carrier, as to this wharf, in the sense that it was bound to accord to the public or to plaintiff a right to use it upon payment of compensation. We do not see that the plaintiff had any right even to demand that the defendant should carry plaintiff's goods on the rails defendant had laid down to reach the wharf from its depot or yards at Pensacola, the terminus of its road at that city. Those rails were only laid for the purpose of reaching the wharf, in order that defendant might carry goods to it which it had undertaken to forward, by itself or by vessels it had arranged with, beyond its line. Very likely it would be bound to carry plaintiff's goods on this part of its rails, for the same purpose and on the same terms it did for others, viz., in order that it might itself, or through others it had contracted with, forward the goods beyond its own line. But plaintiff demands more than this: it demands that defendant shall carry plaintiff's goods over its rails thus laid, in order that plaintiff may itself forward its [198 U.S. 483, 497] goods by vessels of its own selection, and that defendant shall surrender possession of enough of its wharf to enable plaintiff to do so.
That the defendant had the right to choose its own agencies, and grant to them the exclusive privilege of access to its own wharf, which it built only for the purpose of continuing the transportation of goods which it had transported to the end of its line, has in effect been decided by this court. Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U.S. 667 , 28 L. ed. 291, 4 Sup. Ct. Rep. 185. In that case it was held that, although at common law the common carrier was not bound to carry beyond its own lines, yet it might contract to do so, and, in the absence of statutory regulations prohibiting it, the carrier might determine for itself what agencies it would employ to continue the transportation, and it was not bound to enter into agreements for such transportation with another because it had done so with one common carrier. Having the right, as the authorities prove, to decide what agencies it would employ for the purpose of transporting goods beyond its own line, and not being bound to enter into any contracts or arrangements with one person or carrier because it had so contracted or arranged with another, we think it follows that defendant was not obliged to permit the public to have access to its wharf, built for the purpose stated, simply because it granted such permission to those with whom it made arrangements of the kind set forth in the plea. While refusing to make any agreement with defendant for the further transportation of plaintiff's goods beyond Pensacola, plaintiff nevertheless claims a right to use the wharf erected by defendant for its own purpose, as already stated. This cannot be sustained. The principle stated in the above case is, in substance, recognized in Gulf, C. & S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. App. 732, 86 Fed. 407; Little Rock & m. R. Co. v. St. Louis S. W. R. Co. 26 L. R. A. 192, 4 Inters. Com. Rep. 854, 11 C. C. A. 417, 27 U. S. App. 380, 63 Fed. 775, affirming same case in 4 Inters. Com. Rep. 537, 59 Fed. 400. The two last cases involved the construction of the Interstate Commerce Act, but they affirm the principle that a common carrier may agree with [198 U.S. 483, 498] such other carrier as it may choose, to forward beyond its own line the goods which it had transported to its own terminus. See also Central Stock Yards Co. v. Louisville & N. R. Co. 192 U.S. 568 -571, 48 L. ed. 565-569, 24 Sup. Ct. Rep. 339; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 567; Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 4 Inters. Com. Rep. 249, 51 Fed. 465; Ilwaco R. & Nav. Co. v. Oregon Short Line & U. N. R. Co. 5 Inters. Com. Rep. 627, 6 C. C. A. 495, 15 U. S. App. 173, 57 Fed. 673.
The cases cited did not involve rights of parties to a wharf situated in a harbor, but we think that the right of one carrier to enter into arrangements with another carrier to forward its goods, and to refuse to do so with others, or to permit such others to avail themselves of the facilities constructed by the original carrier for that purpose is not altered because the facility so constructed by it happens to be a wharf in the harbor of a city instead of some structure on land. The wharf may be a private one, and its owner may permit those only to have access to it that it may choose. A private wharf may exist on the shores of a navigable river or lake, or in a harbor of a city from which access is obtained directly to the sea. Dutton v. Strong, 1 Black, 23, 32, 17 L. ed. 29, 32.
It is to be remembered that the wharf was not, in strictness, the terminus of defendant for unloading its goods for Pensacola. The defendant had other depots and yards for that purpose. The main use of the wharf was only for the purpose of sending the goods brought by defendant, to other ports as a continuation of their carriage beyond the line of the defendant's road. How much space, if any, it might devote to other vessels, with the managers of which it might make special arrangements, would naturally be for the defendant to decide, as also the particular terms of such arrangements. The conveniences of the wharf are, of course, necessarily limited.
It is well said by counsel for defendant in their brief that 'the very nature of a wharf, and its inadequacy to meet the demands of every incoming vessel, necessitates that its use should be exclusively for those with whom the carrier enters into arrangements. The carrier has a right to select a strong [198 U.S. 483, 499] connection instead of a weak one,-one that will give assurance of permanent business, instead of one that can offer only occasional shipment. If the free use is incompatible with the certain regular use by the steamer, or lines of steamers, with which the carrier is aligned, it is too clear for further reasoning that such carrier has the right to accept the latter and thereby exclude the former.'
The reasons for permitting such use of the wharf are manifold. Without it the commerce of the country in the large cities would be cramped, if not very greatly damaged, by the uncertainty of finding quarters for the regular and swift unloading and loading of the vessels. But the capacity of a wharf is necessarily limited, and if the wharf were open to all comers in their turn there could be no certainty as to any particular vessels being able to reach the wharf at any definite time, and consequently there would be a like uncertainty as to when such vessel would be able to depart with its load. One unexpected so-called tramp vessel might, by arriving a few hours in advance, take possession of all that was left of the wharf for the purpose of loading, and thus prevent the regular steamer, arriving a little later, from coming to the dock, unloading its cargo, and then loading with goods from the railroad. In this way there would be confusion in time and in the possession of the wharf by the different vessels, and its value for the purpose for which it was erected would be greatly reduced, if not wholly destroyed.
The principle herein recognized has also been affirmed by this court in what are known as the Express Cases, 117 U.S. 1 , 29 L. ed. 791, 6 Sup. Ct. Rep. 542, 628, where it was held (because the facilities were necessarily limited) that railroad companies had the right to contract with particular express companies for the transportation of the traffic of the latter over the lines of their railroads, and that the railroad company was not bound to transport the traffic of independent express companies over its lines in the same manner in which it transported the traffic of the particular companies contracted with; in other words, that the railroad [198 U.S. 483, 500] companies were not bound to furnish, in the absence of a statute, to all independent express companies, equal facilities for doing an express business upon their passenger trains.
These observations answer the contention of plaintiff that defendant, by erecting the wharf and using it in the way it does, has thereby devoted its property to a public use, and that it has thereby granted to the public an interest in such use, within the principle laid down in Munn v. Illinois, 94 U.S. 113 , 24 L. ed. 77. It has not devoted its wharf to the use of the public in so far as to thereby grant to every vessel the right to occupy its private property upon making compensation to defendant for the exercise of such right. The reasons we have already endeavored to give.
The judgments of the Circuit Court of Appeals and of the Circuit Court for the Northern District of Florida are reversed, and the case remanded to the latter court for further proceedings not inconsistent with this opinion.
Mr. Justice Harlan dissents.