concurs in the foregoing dissent.
*642Having considered the evidence, the facts as stipulated by the parties, the briefs and arguments of counsel, the court makes the following findings of fact:
1. Plaintiff, a corporation duly organized and existing under the laws of the State of Wisconsin, is engaged as a common carrier by railroad in the transportation of persons and property for hire in interstate and intrastate commerce over its lines in participation with other common carriers.
At all times herein mentioned, Charles W. Thomson was the duly appointed and acting trustee of the property of Chicago and North Western Railway Company in reorganization under Section 11 of the Bankruptcy Act, as amended, under authority of the District Court of the United States for the Northern District of Illinois, Eastern Division, in proceedings for the Reorganization of a Railroad, No. 60448, in the matter of Chicago and North Western Railway Company, Debtor, and as such trustee was engaged in the business of a common carrier of persons and property by rail for hire in interstate and intrastate commerce over his lines of railroad in various states of the United States.
On June 1, 1944, said Chicago and North Western Railway Company became vested with full title, possession and control of all the assets of the trust estate of the Chicago and North Western Railway Company in said reorganization proceeding by an order of the District Court of the United States, Northern District of Illinois, Eastern Division, including the cause of action of said trustee against this defendant.
2. At various times during the years 1942, 1943, 1944 and 1945 plaintiff, in participation with other railroads, transported for the defendant numerous carload shipments of coal from Old Ben Coal Corporation mines in the vicinity of Christopher, Illinois, to Merrimac and Camp McCoy, Wisconsin, and the Naval Training Center, Great Lakes, Illinois. Said shipments were made upon commercial bills of lading which bore a notation that they were “to be converted to Government bills of lading at destination.” The shipments of coal were consigned to Commanding Officer, Badger Ord*643nance Works, Baraboo, Wisconsin; Transportation Officer, Camp McCoy, Wisconsin, for Post Engineer; Quartermaster for Commanding Officer, Milwaukee Ordnance Plant, Milwaukee, Wisconsin; and Supply Officer, Naval Training Center, Great Lakes and Upton, Illinois.
3. Plaintiff, as the final and delivering carrier responsible for the collection of the freight charges, submitted to the defendant its bills for the transportation services in the total amount of $162,328.10 without deductions for land-grant, and the said amount was paid in due course by duly authorized Government disbursing officers. The freight charges for said services were based on duly published commercial tariff rates which were in effect at the time the shipments were made. Subsequently defendant, without the knowledge or concurrence of plaintiff, concluded that the freight charges should have been computed at net land-grant rates and deducted the sum of $32,705.89 from bills rendered by plaintiff for other transportation services to adjust prior payments to the land-grant rate basis asserted by defendant. This resulted in plaintiff receiving $129,622.21 for the transportation of the shipments of coal involved herein.
Christopher, Illinois, is served by the Chicago, Burlington and Quincy Railroad which, with plaintiff, participated in the transportation of the shipments of coal here involved. The City of Christopher is served also by the Illinois Central Railroad. There are no track connections between the Chicago, Burlington and Quincy Railroad and rails of the Illinois Central at Christopher and there is no switching arrangement established in the applicable freight tariffs by which the Illinois Central can transport coal from the Old Ben Coal Corporation Mine No. 11, located on rails of the Chicago, Burlington and Quincy, which is the only railroad having access to the mine and facilities of the aforesaid Mine No. 11.
Another and different mine of the Old Ben Coal Corporation, namely No. 14, is located on and served by the Chicago, Burlington and Quincy Railroad and the land-grant line of the Illinois Central Railroad.
4. Prior to the transportation of the coal involved herein, the plaintiff and its participating carriers had on file with *644the Quartermaster General of the War Department a freight land-grant equalization agreement whereby said carriers agreed:
* * * to accept for the transportation of property shipped for account of the Government of the United States and for which the Government of the United States is lawfully entitled to reduced rates over land grant roads, the lowest net rates lawfully available, as derived through deductions account of land grant distances from the lawful rates filed with the Interstate Commerce Commission * * * applying from point of origin to destination at time of movement.
The Illinois Central Bailroad is the route over which the land-grant rate is computed from Christopher, Illinois, to the destinations involved herein.
5. The coal was purchased under contracts with the Old Ben Coal Corporation f. o. b. mine and at the time of its shipment it was owned by the defendant and was military property moving for military and not for civil use.
Commercial shipments of coal from Old Ben Coal Corporation Mine No. 11 over the period herein involved were governed by Chicago, Burlington and Quincy Tariff, I. C. C. No. 19670, C. B. & Q. G. F. O. 15000-E and supplements thereto.
6. The through commercial freight rate on coal from Christopher, Illinois, via the Illinois Central to the destinations involved herein is the same as via the lines of the plaintiff and its participating carrier, the Chicago, Burlington and Quincy Bailroad, to the said destinations. The freight charges under the equalization agreement are computed at net land-grant rates via the land-grant route and not over the actual route of movement.
7. Land-grant rates were applicable for assessing the freight charges on the shipments of coal which moved from Old Ben Coal Corporation Mine No. 14 and its other mines in the vicinity of Christopher, Illinois, which were accessible to and served by the land-grant line of the Illinois Central Bailroad. Some of the shipments of coal involved herein moved from Old Ben Coal Corporation Mine No. 11-V1 and *645some of it moved from that corporation’s Mine No. 14 which was served by both the Chicago, Burlington and Quincy Railroad and the line of the Illinois Central, but the evidence fails to show how many carload shipments of coal mentioned in the exhibit to' the petition actually moved from Mine No. 11-V or from other mines which may have been located on and served by both of said lines.
CONCLUSION OP LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiff is entitled to recover.
The entry of judgment is suspended to await the filing of a stipulation by the parties showing the amount due plaintiff, computed in accordance with this opinion.
The terms “11 and 11-V” refer to one and the same mine, served solely by the Chicago, Burlington and Quincy Railroad.