I concur in the majority opinion that, taking all of the rather unusual facte of these eases into consideration, an equal division between the Railway Company and the Power Company of the entire cost of construction is the most equitable solution of the problems involved. I therefore would concur in toto in the affirmance of the judgments of the lower court, were it not for the fact that I believe that court to have fallen into an error of mathematical calculation as a result of which the judgments do not in fact do what they purport to do, i. e., divide the total cost equally between the parties, and that therefore tho eases should have been remanded in order that the judgments could be corrected as hereinafter explained.
Also it seems to me that the bridge extension feature of tho cases, involving $09,-698.02, and presenting a separate and distinct question of law, requires some separate consideration. The circumstances surrounding this outlay aro as follows:
After tho bridge and track approach of dirt fill were nearing completion in the fall of 1919, Mr. Durham, chief engineer under federal control, notified the Power Company that he would require an extension of the bridge on the cast end, consisting of eight additional piers and girders, to bo built of concrete and of approximately tlie same dimensions and proportions as the bridge proper; and ho advised the Power Company if this extension was not built as so required, he would not accept the now bridge and would refuse to surrender and abandon tho old bridge and track. Mr. Durham disclaimed all responsibility as agent for the Railroad Company, and the Power Company did not notify or take up with any officer of the Railroad Company the matter of this construction or secure the Railroad Company’s authority to construct or promise to pay for the same. Tho government made no charge on its hooks against the Railroad Company on account of this addition and betterment, and there has been a final settlement between, the government and the Railroad Company covering the period of federal control.
Tho Railroad contends that the result of the judgment of tho lower court is to require it to pay, as an adjudged benefit to it, one-half of the cost of tho bridge extension not covered by any agreement which it made and not ordered by it, which was shown to be unnecessary and not required by good engineering, but which was constructed by separate arrangement between tho Power Company and the United States Railroad Administration. It is urged that the Railroad Company cannot ho estopped to deny liability for what was done by federal authority, because to constitute an agency by estoppel the person so estopped must have either represented, or permitted it to be represented, that the alleged agent was in fact Iris, own agent; whereas, here, it is not shown that the Railroad Company made any representations as to Mr. Durham’s authority, unless its silence be construed as such, and he himself had expressly denied having such authority. These facte alone may not constitute an estoppel, but thereafter on March 24-, 1920, when tho Railroad Company accepted this bridge extension, abandoned the old bridge and track, and transferred its trains to tba new, with knowledge of the Power Company's claim and without requiring an accounting from the government for its cost, the Railroad Company must be held to have done so cum onere. Prior to tho time the Power Company conveyed tho right of way and turned over the bridge to the Railroad Company, tho latter was notified of the Power Company’s claim against it, but without requiring a withdrawal of tho claim, and without imposing any limitation thereon, the Railroad Company accepted a deed for tho right of way and accepted the bridge and other improvements and continued thereafter to use the same as a part of its permanent equipment. To permit it to retain and use such a structure under such circumstances without paying something therefor would fa© contrary to every principle of equity. I believe that tho judgment of the lower court in dividing the cost of this construction between tho Railroad Company and the Power Company, just as it purported to divide the cost of the other items of construction, is entirely equitable.
The lower court found the total cost to *42have been $356,614.82 and that the Railroad Company and the Power Company should each pay one-half, or $178,307.41. In the total cost was included an item of $20,178.39 which had been expended by the Railroad Company to complete the work. This entire sum, as claimed by the fifty-seventh assignment of error, and not merely one-half of it as the lower court calculated, should therefore have been credited to the Railroad Company in fixing the amount of the present judgment, which thus would have been $158,-129.02 and not $168,219.21. Accordingly, I feel that both eases should have been remanded for entry of corrected judgments in conformity with this calculation.