(specially concurring). I concur in the reversal of the decree of the trial court, and also for the most part in what is said in the foregoing opinion. I do not, however, concur in the exclusion of the industrial tracks from the operation of the decree of 1886. These tracks are the usual and necessary features of railway terminals in a large city, and are as much a part thereof as the limbs are of a tree. They go with the right of way as appendages thereto, and are always so regarded. Their use is essential to the enjoyment of the rights awarded. In my opinion they are clearly within the spirit of the decree of 1886, and also by fair construction within its letter. The decree granted to the intervener the “right of way, tracks, switches, side tracks, turn-outs, turntables, and other terminal facilities of the Wabash Railway Company between the north line of Forest Park and Eighteenth street in the city of St. Eouis.” This is very broad language and it was repeatedly employed in the decree. That judge Brewer intended to include such industrial tracks as were in existence when the decree was made also seems plain from his opinion (29 Fed. 559). The cost of their construction was included in the total cost upon which the percentage compensation to be paid by the inter-vener was based. Moreover, the consistent course of conduct of the parties for 13 years following the decree shows that they regarded them as being a part of the property the joint use of which was granted to the intervener. I am unable to see any persuasive reason for excepting them from the comprehensive enumeration of terminal facilities in the decree. That they extend beyond the side lines of the strip of land owned by the Wabash Company and upon the land of others seems to me to he a circumstance wholly immaterial and yet it must *864be. the circumstance upon which their exclusion from the decree is made to depend. The Wabash Company owns these industrial tracks and operates them as part of its right of way and terminal facilities. Of what importance is it that they are in part upon public highways and the land of others under license instead of being wholly upon land owned by that company? If the latter condition existed, it would doubtless be conceded that they fell within the decree. The scope of the decree is therefore determined not by the character of the tracks and their relation to the right of way and terminal facilities as a whole with which the court was dealing but by the character of the title of the Wabash Company to the ground upon which the tracks are laid. It seems to me there has been a narrowing of the decree in this particular.
The case of the Union Pacific Company v. Mason City Company, 199 U. S. 160, 171, 26 Sup. Ct. 19, 50 L. Ed. 134, is-not an authority for this construction of the decree. The court was there considering a claim of the. Mason City Company for the use of the Union Pacific bridge across the Missouri river at Omaha, and its approaches. Naturally this would not include industrial tracks and switches. Indeed, when rightly regarded, the decision of the Supreme Court makes for a conclusion contrary to that reached by my associates. An act of Congress conferring in most general terms upon other railroad companies the right to cross the bridge at Omaha was held to give the Mason City Company the right not only to cross the bridge, but to use several miles of main and passing tracks of the Union Pacific in the cities of Omaha and South Omaha. The decision well serves to illustrate the liberality with which provisions of the kind we are now discussing are construed when public interests are involved.
Of course, the right to use industrial tracks laid since the decree of 1886 was rendered would require consideration of the subject of compensation. The compensation specified in the decree does not include them.
There are also some other observations near the close of the foregoing opinion which I think are riot necessary to the consideration of the case. They relate to conditions which it is conceded do not exist at present and which may never arise in the future. I do not wish to express or concur in any view concerning them until they arise and are presented for judgment in the usual way.