LUM V. UNITED STATES (reported here with) ante, 1143.

And a belt railway company operat ing wholly within a county of a state for the purpose of switching cars between trunk lines, for which it makes an arbitrary charge per car, which it collects from the railroad companies, issuing no bills of lading to shippers, is, while engaged in switching between two trunk lines a car en route from one state to another, engaged in interstate commerce so as to be within the operation of the same act of Congress. Belt R. Co. v. United States (1909) 22 L.R.A. (N.S.) 582, 93 C. C. A. 666, 168 Fed. 542.

A city suburban belt railroad company which switches cars on its own tracks from a trunk line to stockyards was held in Fleming v. St. Louis & S. F. R. Co. (1901) 89 Mo. App. 129, to be doing more than a mere switching business, and to be a common carrier, and therefore amenable to the rules governing common carriers to avoid doing injury.

And a belt and terminal railroad company whose service consisted entirely of switching and transferring cars between points in and near a city for other railroad companies, and in furnishing freight and passenger depots, in loading and unloading cars. for other railroad companies of such city for compensation of a certain amount per car switched, received from the railroad companies, was held to be a common carrier engaged in interstate commerce, in State v. Houston Belt & Terminal R. Co. (1914)

Tex. Civ. App., 166 S. W. 83, reversed on other points in (1917) 108 Tex. 314, 192 S. W. 1054, defeating an attempt by the state to tax the gross receipts of such company derived from the carriage of interstate commerce.

It is stated in W. H. Aton Piano Co. v. Chicago, M. & St. P. R. Co. (Wis.) supra, that a company operating a mere switching railway, transporting cars to and from trunk lines upon the basis of a division of profit, may be an interstate carrier.

And it is stated in United States v. Chicago, B. & Q. R. Co. (1923) 293 Fed. 185, that terminal companies are

generally common carriers engaged in interstate commerce, and amenable to laws regulating such carriers.

A local terminal transfer railway company engaged chiefly in switching the cars of trunk lines to and from plants, docks, and elevators of its locality was held in Waldum v. Lake Superior Terminal & Transfer R. Co. (1919) 169 Wis. 137, 170 N. W. 729, to be a common carrier within the meaning of the Workmen's Compensation Act.

A navigation corporation engaged in conducting the usual terminal operation for a number of interstate railways, including the transportation between its docks, warehouses, and points on any of such railways of all property that is offered, is a common carrier subject to the Hours of Service Act of March 4, 1907 (34 Stat. at L. 1415, chap. 2939, Comp. Stat. § 8677, 8 Fed. Stat. Anno. 2d ed. p. 1383), although all the services rendered are performed under contract with such railway companies as agent for them, and not on its own account, and all the freight transported is contained only in cars furnished by the railroad companies with which it has contracts. United States v. Brooklyn Eastern Dist. Terminal (1919) 249 U. S. 296, 63 L. ed. 613, 39 Sup. Ct. Rep. 283.

A terminal company which furnishes terminal facilities to the railroads terminating at a city, and which owns only the railroad tracks within the terminal yards and operates locomotives to switch the cars of the several railroads to its team tracks for unloading purposes for city delivery, is, when hauling within its yards for unloading purposes a car from another state, of one of the railroad companies, engaged in interstate commerce, within the meaning of the Safety Appliance Act of Congress. United States v. Northern Pacific Terminal Co. (1906) 144 Fed. 861.

A terminal company which exclusively manages, operates, and controls all steam railroad passenger traffic entering into and leaving a city while within the zone occupied by its station and tracks, and which makes up out

going trains by the use of its switch engines, is engaged in interstate commerce, and is a common carrier within the meaning of the Federal Employers' Liability Act. McNamara V. Washington Terminal Co. (1911) 37 App. D. C. 384.

And a terminal road which switches indiscriminately for foreign and domestic cars is, when switching interstate cars, engaged in interstate commerce within the meaning of the same act. Cott v. Erie R. Co. (1921) 231 N. Y. 67, 131 N. E. 737, 21 N. C. C. A. 519, writ of certiorari denied without opinion in (1921) 257 U. S. 636, 66 L. ed. 409, 42 Sup. Ct. Rep. 48.

A railroad situated entirely within a state, which is no more than a switching road connecting the various trunk lines with each other, and with various industries which have been established upon its rails, is a common carrier engaged in interstate commerce, and so subject to the Act to Regulate Commerce (Act of Feb. 4, 1887, chap. 104, 24 Stat. at L. 379, Comp. Stat. § 8563, 4 Fed. Stat. Anno. 2d ed. p. 337), requiring the filing of its rates with the Interstate Commerce Commission. United States v. Illinois Terminal R. Co. (1909) 168 Fed. 546.

In Peoria & P. Union R. Co. v. Chicago, R. I. & P. R. Co. (1884) 109 Ill. 135, 50 Am. Rep. 605, it was conceded that a local union railway company, whose principal business was switching cars for other railroad companies having their terminal point at a city where the union company operated, was a common carrier, the question at issue being whether it bore the relation of common carrier to one of the railroad companies as to one of its cars which it was switching, which question was answered in the affirmative.

A city terminal railroad and warehouse company incorporated to construct, operate, and maintain one or more lines of railway within the corporate limits of the city, with all needed sidetracks, depot yards, warehouses, storehouse, elevators, and all other needed terminal facilities, is a railroad corporation within the mean

ing of a statute authorizing railroad corporations to mortgage their property. Beach v. Wakefield (1899) 107 Iowa, 567, 76 N. W. 688, 78 N. W. 197.

The following cases are the industrial-plant switching-service cases previously referred to as not strictly in point, but which may aid in solving this question:

A stockyard company which has its own railroad tracks and hauls cars from different trunk lines to sidetracks of different commission houses is held to be a common carrier, in Fesser v. Chicago & I. Midland R. Co. (1914) 193 Ill. App. 432, affirmed in (1915) 267 Ill. 418, 108 N. E. 709, without discussion of this point, holding that the judgment of the appellate court that the stockyards company was a common carrier was binding upon it as to such point.

And a corporation engaged in operating stockyards owning switch tracks between such yards and the railroads over which stock is transported thereto, and making a charge to the railroad company for each car moved over such tracks in accordance with the tariff filed with the Interstate Commerce Commission, is to be regarded as engaged in business as a common carrier. State ex rel. Dawson v. Kansas City Stock Yards Co. (1915) 94 Kan. 96, L.R.A.1918B, 680, 145 Pac. 831. In this case, where the state secured a decree ousting the stockyard company from exercising the function of engaging in intrastate business as. a common carrier, because not authorized to do so by its charter, it was admitted that the stockyard company was engaged in interstate commerce, the company pleading as a defense that, as only a few cars with each trainload were from within the state, there was such a mingling of interstate and intrastate commerce that the intrastate should be regarded as incidental to and merged with interstate business, which, of course, could not be interfered with by the state.

A stockyard company is a "common carrier" within the definition of that term in a constitutional amendment and statute giving a state railway commission control over common car

riers, where such stockyard company has about 35 miles of railroad track upon its own premises, including what is known as a transfer track, connecting with the tracks of several railway lines running to the city where the stockyards are located, and such company switches cars over its tracks from the trunk lines to its yards, and to several private industries conducted adjacent to its premises, and switches outgoing cars to the transfer track, where they are received by the trunk lines, for a certain amount per car, paid by the trunk lines. State ex rel. Winnett v. Union Stock Yard Co. (1908) 81 Neb. 67, 115 N. W. 627.

A stockyard company which owns and operates under its charter a railway system connecting with trunk lines and having switches to various industries within the stockyard district for the transportation of cars to and from the trunk lines, in the course of their transportation from beyond the state and to points outside the state, is an interstate carrier within the meaning of the Interstate Commerce Act of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. § 8563, 4 Fed. Stat. Anno. 2d ed. p. 337). United States v. Union Stock Yards & Transit Co. (1912) 226 U. S. 286, 57 L. ed. 226, 33 Sup. Ct. Rep. 83. And a stockyard company which owns and operates railway tracks upon its own premises, including a transfer track connecting with all the ' trunk lines entering the city in which it is located, and by means of its own locomotives and servants hauls the cars of the trunk line loaded with interstate shipments to and from the transfer track under a contract of carriage with the railroad company, called a switching contract, for compensation paid by the railroad company as a switching charge, is a common carrier engaged in interstate commerce within the meaning of the

Safety Appliance Act of Congress. Union Stockyards Co. v. United States (1909) 94 C. C. A. 626, 169 Fed. 404. A railroad organized under the general railroad act, whose tracks lay within the plant of a large corporation and whose business consisted entirely of switching, to and from the plant, for the corporation, cars of railroads with whose tracks its tracks connected, some of the cars coming from points without the state, receiving for its pay a part of the through freight rate paid by the shipper, is a common carrier engaged in interstate commerce within the meaning of the same act. Kenna v. Calumet, H. & S. E. R. Co. (1918) 284 III. 301, 120 N. E. 259, 18 N. C. C. A. 671.

A stockyard company which owns railroad tracks and locomotives, and operates them by its employees to switch the cars to and from the railroad companies which enter the market center where the stockyards are located, and also carries over its tracks the products or freight of packing houses from one to the other at such center, is a common carrier engaged in interstate commerce within the meaning of the Federal Twentyeight-hour Law of 1906. United States v. Sioux City Stock Yards Co. (1908) 162 Fed. 556, affirmed on other points in (1909) 92 C. C. A. 578, 167 Fed. 126.

And a stockyard company operating switch tracks encircling the stockyards connecting therewith, and connecting with the trunk line railroads entering the city, and which issues no bills of lading and receives no part of the freight charges paid the trunk line companies, but receives a certain amount per car from such companies, is a common carrier engaged in interstate commerce within the meaning of the same law. United States v. St. Joseph Stockyards Co. (1909) 181 Fed. 625, reversed on other points in (1911) 110 C. C. A. 432, 187 Fed. 104.

G. V. I.

Specific performance, § 60-effect of change in conditions.

7. Specific performance of a right to a deed of real estate under an option in a lease will not be denied because changed conditions have greatly enhanced the value of the property. [See 25 R. C. L. 254, 255; 4 R. C. L. Supp. 1578.]

Specific performance, § 2 - grant as matter of right.

8. A court of equity will enforce a valid contract for sale of land as a matter of right where it was fairly and understandingly entered into and no circumstances of oppression or fraud appear.

[See 25 R. C. L. 270; 3 R. C. L. Supp. 1414.] Specific performance, § 17 - consideration of fairness of contract.

9. The question of the fairness of a contract for sale of real estate is to be decided with respect to the time when the contract was made, unless the delay in carrying it out is caused by the person seeking the perform