Oswald v. Pacific Electric Railway Corp.

CRAIL, J. The plaintiff appeals from a judgment of non-suit in an action brought to recover $27,356.34, which had been paid by the plaintiff to the defendant under the following circumstances: The plaintiff owned 100 acres of land. The defendant, a public utility, owned a right of way and main spur line adjoining said land.' The plaintiff made application for a spur track connection with the trackage of the defendant in order to serve the plaintiff's land. In April, 1929, a conference was held between the plaintiff and the president of the defendant in regard to the proposed spur track, at which time the president" of the defendant stated that a concern known as Beliance Bock Company had put up some of the original money to get the main spur line built there and that, before he could consent to plaintiff’s joining the trackage, plaintiff would have to pay a portion of the original cost of the main spur. When asked how much it would cost the president said he did not remember the exact' figures but it was around $50,000 that the rock company had paid. Counsel for plaintiff said, “Well, aren’t we legally entitled to join your trackage?” Whereupon the president put his hand on a map and said, “You may be legally entitled to join the trackage but before you join it I will take it to the Supreme Court of the United States unless you pay your proportionate amount.” To which counsel for plaintiff said, “Well, we do not want any litigation if we can avoid it. We have a valuable piece of property and want to be served. ’ ’ The president of defendant replied, “That is the only condition upon which I can let you join.” He agreed to send the details of the proportionate cost by letter. On April 26, 1929, the defendant wrote the plaintiff a letter giving the details of the costs. The substance was as follows: “The cost to the World Bock Co. ' [the plaintiff] for portion of main line spur from San Bernardino Line to the Beliance plant is as [180]follows: (a) Vs of the % interest now owned jointly by the Reliance Rock Company and the Consumers Rock and Gravel Company . . . $12,122.08. (b) of Reliance Rock Company’s y% interest . . . $15,234.26. Cost to World Rock Company, not including cost of proposed spur, $27,356.34.” In addition to the above, the company asked for “Cost of spur track off of the Reliance Spur . . . $1,320.”

On June 8, 1929, the plaintiff paid the said sums to the defendant. On June 21, 1929, the defendant sent to the plaintiff an “Industrial Track Agreement” to be executed by the plaintiff covering the erection of the spur and the general terms upon which the defendant would serve the plaintiff. This agreement was never executed by the plaintiff. And the spur track connection for the plaintiff was never constructed by the defendant.. Prior to commencing the action, plaintiff made demand for the return both of the $1320 item and the $27,356.34 item. The cost of the spur track connection was returned, but the defendant refused to return the cost of the proportionate interest in the right to use the main spur track, the contention of the defendant being that the $27,356.34 was paid by the plaintiff to purchase a right to use the Reliance Rock spur on reasonable terms. •