ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE McKENNA delivered the opinion of the court.
Action of assumpsit by plaintiff in error in the Supreme
Court of the District of Columbia to recover the sum of $7,172.97 claimed by it as the amount of unexpended balances of three deposits made by it with the District to cover the cost of certain work undertaken by the District for it.
The case was tried to a jury which, under the instructions of the court, returned a verdict for the plaintiff in the sum of $1,089.79, with interest, upon which judgment was duly entered. The judgment was affirmed by the Court of Appeals. We shall refer to plaintiff in error as plaintiff and to the defendant in error as the District.
The controversy grows out of work required to be done by certain acts of Congress for the elimination of grade crossings on the line of the Baltimore & Ohio Railroad Company in the city of Washington, and requiring the railroad company to depress and elevate its tracks, and to enable it to relocate parts of its railroad therein, and for other purposes. Act of February 12, 1901, 31 Stat. 767, c. 535. The scheme of improvement was quite extensive and the act described in detail the changes to be made in the grades of streets in connection with the change of the location of the railroad company's tracks and station.
Section 9 of the act is the one with which we have most concern. It provides as follows, omitting parts not essential to be quoted:
"SEC. 9. That the entire cost and expenses of the revision, changes, relocations, and improvements of and in said railroad, as authorized and required by the preceding sections of this Act, and of all structures connected therewith or incidental thereto, shall be borne, paid, and defrayed in manner following, to wit: The said Baltimore and Potomac Railroad Company shall bear, pay, and defray all cost and expenses of relocation, elevation, and depression of its tracks within the limits of its right of way as are authorized and required by this Act. . . . All other costs, expenses and damages resulting from, incidental
to, or connected with the revisions, changes, and improvements in alignment and grades of said railroad, or the relocations thereof by this Act required and authorized and from changes in the grades of the streets or the railroad . . . shall be borne, paid, and defrayed in manner following, to wit: Fifty per centum thereof by the United States and the remaining fifty per centum thereof by the District of Columbia. . . . All work within the limits of said railroad company's right of way . . . shall be done by said railroad company to the satisfaction and approval of the Commissioners of the District of Columbia, who are authorized to exercise such supervision over the same as may be necessary to secure the proper construction and maintenance of the said work. And all work which is without the limits of the right of way . . . shall be done by the District of Columbia."
There were quite radical modifications of the plan for the railroad terminal made by an act passed in 1903. February 28, 1903, 32 Stat. 909, c. 856. Among other things, it provided for the construction of tunnels. It is, however, contended by plaintiff that the distribution of the cost of the work, as provided in § 9 of the prior act, was not changed. The District contends that the deposits made by plaintiff were for work to be done by the latter, and that the work which was done by it, the District, was upon construction neither contemplated nor authorized by the act of 1901, but was embraced in the new location directed by the act of 1903, and was imposed by the latter act upon the railroad company, and was done by the plaintiff as agent of the railroad company.
In pursuance of the acts of Congress the railroad company prepared a plat of its proposed line, extending from Second Street and Virginia Avenue southwest to First Street and Massachusetts Avenue northeast. This ...