BLAND, P. J.
I. Counsel for both parties have devoted a good déal of time to the discussion of the rights of the parties to the possession of the cars after they had been placed in the Darlington yards, and in respect to the right of the defendant to enter upon the switch with its engines to remove the cars without plain- ■ tiffs’ consent.
The contention of plaintiffs is, that they were in the possession of both the switch and of the cars, and [12]*12that the switch was their property and that defendant had no right in or npon it, except by the grace of plaintiffs. To the contrary the defendant contends that it had an interest in the switch, or at least a license to move its engines upon it, and that it never parted with its possession and control of the cars. In the light of the circumstances* surrounding the construction of the switch, it does not seem to ns that there should be any serious contention about the rights of the parties in respect thereto. The switch was put in for the profit and convenience of the tenants of the Merchants’ and Manufacturers’ Railroad Warehouse Company, on its land and mostly at its expense and also for the profit of the defendant railroad company and partly at its expense, so that for the purpose of taking in and pulling out cars consigned to the tenant of the Merchants ’ and Manufacturers’ Railroad Warehouse Company, defendant had a license coupled with an interest in all that part of the switch on the private land of the Merchants’ Railroad Warehouse Company, and as such licensee had the unquestionable right to move its engines thereon, to set in or take cars off the track consigned to the lessee of the Merchants’ and Manufacturers’ Railroad Warehouse Company. Such a privilege can not be arbitrarily or suddenly revoked. Baker v. Railroad, 57 Mo. 1. c. 272; Dickson v. Railroad, 67 S. W. 642; Chiles v. Wallace, 83 Mo. 85; Gibson v. St. L. Agricultural & Mechanical Áss’n, 33 Mo. App. (St. L.) 165; McAllister v. Walker, 69 Mo. App. (St. L.) 496; House v. Montgomery, 19 Mo. App. (K. C.) 170; Cook v. Pridgen, Stapler & Dunn, 45 Ga. 331; Kirk v. Hamilton, 102 U. S. 68; Risein v. Brown, 73 Tex. 135; Campbell v. Railroad, 110 Ind. 490; Evansville & Terre Haute R. R. et al. v. Nye, 113 Ind. 223; Garrett v. Bishop, 27 Oregon 349.
The plaintiffs leased 'the land with the switch upon it and with knowledge of the uses made of it by the defendant, and it was not within their power, as lessees [13]*13of part of the land, to revoke the license or to interfere with the nse of the switch by the defendant company so long as it did not abuse its license.
2. Plaintiffs claim, and the circuit court so held on the trial, that the plaintiffs were in the possession and had control of the lumber at the time the cars were moved off by defendant. We do not think this claim is exactly correct. The cars were switched on the track in the plaintiffs’ yard for the purpose of being unloaded. To accomplish this purpose the plaintiffs were in a sense in possession of both the cars and their contents, but the defendant did not lose its dominion over the cars of lumber so long as it remained in the cars. It retained the right to repossess itself of the cars after they were unloaded and to repossess itself of both cars and the lumber remaining in them for the purpose of enforcing any carriers ’ lien it may have had on the lumber existing when the cars were placed, or any common-law lien acquired after they were placed in plaintiffs’ yard. After the cars were placed plaintiffs had a right to the use of them for a reasonable time for the purpose of unloading. Forty-eight hours, according to defendant’s car-service rules, was allowed as a reasonable time in which to unload. The rule further provides that in case the car should be retained by plaintiffs for the purpose of unloading beyond forty-eight hours, plaintiffs should pay as demurrage one dollar per day per car for the time they were detained over the forty-eight hours of free time.
It is conceded that plaintiffs had knowledge of the existence and terms of this rule and that they only objected to the payment of the demurrage charges on account of the weather, and it appears from the evidence of Darlington that the rule had theretofore been recognized and acted upon by the plaintiffs, so that, leaving out of consideration the stipulations in the bills of lading, there is abundant evidence that plaintiffs impliedly agreed to be bound by these car-service rules. But in[14]*14dependent of any express or implied contract of plaintiffs to be bound by tbe rules, tbe modern doctrine in this country is that the right to demurrage, in such circumstances, exists independent of contract or statute. Hawgood v. 1310 Tons of Coal, 21 Fed. Rep. 681; Huntly v. Dows, 55 Barb. 310; Miller v. Mansfield, 112 Mass. 260; Miller & Co. v. Georgia R. R. & Banking Co., 88 Ga. 563, s. c., 18 L. R. A. 323; Kentucky Wagon Manufacturing Co. v. O. & M. Railroad, 98 Ky. 152; Owen v. St. L. & S. F. Ry. Co., 83 Mo. 464; McGee v. C., R. I. & P. Ry. Co., 71 Mo. App. (K. C.) 314; Norfolk & W. R. Co. v. Adams, 18 S. E. (Va.) 1. c. 675.
In this State demurrage charges, as to shipments of grain in carload lots, are allowed by statute. Section 1115, R. S. 1899.
The right to make the charge, we think, is established by the modern authorities. The Chippewa Falls bill of lading expressly stipulated for a lien for demurrage charges, the Oregon one did not. The question then is, did defendant have a lien on the lumber remaining in the car from Oregon when it moved it? The English rule is that no lien exists for demurrage charges under the maritime law unless it is expressly provided by contract (Burley v. Gladstone, 3 Maul. S. 205), and some of the American courts have followed the English doctrine. Gage v. Morse, 12 Allen 410; Chicago, etc., Ry. Co. v. Jenkins, 103 Ill. 1. c. 598; Cleveland, C. C. & St. L. Ry. Co. v. Holden, 73 Ill. App. 582; B. & M. R. R. Co. v. Chicago Lumber Co., 15 Neb. 390; Crommelin v. N. Y. & Harlem R. R. Co., 4 Keys 90.
The authority of the case of Gage v. Moore is overturned by the later Massachusetts .case of Miller v. Mansfield, supra. The Nebraska case followed the case of Railroad Co. v. Jenkins; 103 Ill. 598, without comment.
Coming to the recent cases we find the following decisions hold that the right of lien exists independent of [15]*15contract: McGee v. Railroad, Miller v. Georgia R. R. & Banking Co., Kentucky Wagon Manufacturing Co. v. O. & M. R. R., Miller v. Mansfield, supra, and 4 Elliott on Railways, sec. 156.
The railroad commissioners of some of the States have recognized the rule and the right to enforce demurrage charges. The Kansas Commission in the case of Davis v. M., K. & T. Ry. Co., Commissioners’ Reports of Kansas, 1891, p. 21, the Iowa Commission in Rothschild v. Railroad; Commissioners’ Reports, 1887, p. 783; the Missouri Commission in the case of E. R. Darlington & Co. v. Central Car Ass’n of St. Louis, May 16, 1901.
The following is quoted from the opinion of Judge Toney, chancellor before whom the Kentucky Wagon Manufacturing Company case was first heard as presenting a sound and logical demonstration of the necessity and reasonableness of the rule:
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BLAND, P. J.
I. Counsel for both parties have devoted a good déal of time to the discussion of the rights of the parties to the possession of the cars after they had been placed in the Darlington yards, and in respect to the right of the defendant to enter upon the switch with its engines to remove the cars without plain- ■ tiffs’ consent.
The contention of plaintiffs is, that they were in the possession of both the switch and of the cars, and [12]*12that the switch was their property and that defendant had no right in or npon it, except by the grace of plaintiffs. To the contrary the defendant contends that it had an interest in the switch, or at least a license to move its engines upon it, and that it never parted with its possession and control of the cars. In the light of the circumstances* surrounding the construction of the switch, it does not seem to ns that there should be any serious contention about the rights of the parties in respect thereto. The switch was put in for the profit and convenience of the tenants of the Merchants’ and Manufacturers’ Railroad Warehouse Company, on its land and mostly at its expense and also for the profit of the defendant railroad company and partly at its expense, so that for the purpose of taking in and pulling out cars consigned to the tenant of the Merchants ’ and Manufacturers’ Railroad Warehouse Company, defendant had a license coupled with an interest in all that part of the switch on the private land of the Merchants’ Railroad Warehouse Company, and as such licensee had the unquestionable right to move its engines thereon, to set in or take cars off the track consigned to the lessee of the Merchants’ and Manufacturers’ Railroad Warehouse Company. Such a privilege can not be arbitrarily or suddenly revoked. Baker v. Railroad, 57 Mo. 1. c. 272; Dickson v. Railroad, 67 S. W. 642; Chiles v. Wallace, 83 Mo. 85; Gibson v. St. L. Agricultural & Mechanical Áss’n, 33 Mo. App. (St. L.) 165; McAllister v. Walker, 69 Mo. App. (St. L.) 496; House v. Montgomery, 19 Mo. App. (K. C.) 170; Cook v. Pridgen, Stapler & Dunn, 45 Ga. 331; Kirk v. Hamilton, 102 U. S. 68; Risein v. Brown, 73 Tex. 135; Campbell v. Railroad, 110 Ind. 490; Evansville & Terre Haute R. R. et al. v. Nye, 113 Ind. 223; Garrett v. Bishop, 27 Oregon 349.
The plaintiffs leased 'the land with the switch upon it and with knowledge of the uses made of it by the defendant, and it was not within their power, as lessees [13]*13of part of the land, to revoke the license or to interfere with the nse of the switch by the defendant company so long as it did not abuse its license.
2. Plaintiffs claim, and the circuit court so held on the trial, that the plaintiffs were in the possession and had control of the lumber at the time the cars were moved off by defendant. We do not think this claim is exactly correct. The cars were switched on the track in the plaintiffs’ yard for the purpose of being unloaded. To accomplish this purpose the plaintiffs were in a sense in possession of both the cars and their contents, but the defendant did not lose its dominion over the cars of lumber so long as it remained in the cars. It retained the right to repossess itself of the cars after they were unloaded and to repossess itself of both cars and the lumber remaining in them for the purpose of enforcing any carriers ’ lien it may have had on the lumber existing when the cars were placed, or any common-law lien acquired after they were placed in plaintiffs’ yard. After the cars were placed plaintiffs had a right to the use of them for a reasonable time for the purpose of unloading. Forty-eight hours, according to defendant’s car-service rules, was allowed as a reasonable time in which to unload. The rule further provides that in case the car should be retained by plaintiffs for the purpose of unloading beyond forty-eight hours, plaintiffs should pay as demurrage one dollar per day per car for the time they were detained over the forty-eight hours of free time.
It is conceded that plaintiffs had knowledge of the existence and terms of this rule and that they only objected to the payment of the demurrage charges on account of the weather, and it appears from the evidence of Darlington that the rule had theretofore been recognized and acted upon by the plaintiffs, so that, leaving out of consideration the stipulations in the bills of lading, there is abundant evidence that plaintiffs impliedly agreed to be bound by these car-service rules. But in[14]*14dependent of any express or implied contract of plaintiffs to be bound by tbe rules, tbe modern doctrine in this country is that the right to demurrage, in such circumstances, exists independent of contract or statute. Hawgood v. 1310 Tons of Coal, 21 Fed. Rep. 681; Huntly v. Dows, 55 Barb. 310; Miller v. Mansfield, 112 Mass. 260; Miller & Co. v. Georgia R. R. & Banking Co., 88 Ga. 563, s. c., 18 L. R. A. 323; Kentucky Wagon Manufacturing Co. v. O. & M. Railroad, 98 Ky. 152; Owen v. St. L. & S. F. Ry. Co., 83 Mo. 464; McGee v. C., R. I. & P. Ry. Co., 71 Mo. App. (K. C.) 314; Norfolk & W. R. Co. v. Adams, 18 S. E. (Va.) 1. c. 675.
In this State demurrage charges, as to shipments of grain in carload lots, are allowed by statute. Section 1115, R. S. 1899.
The right to make the charge, we think, is established by the modern authorities. The Chippewa Falls bill of lading expressly stipulated for a lien for demurrage charges, the Oregon one did not. The question then is, did defendant have a lien on the lumber remaining in the car from Oregon when it moved it? The English rule is that no lien exists for demurrage charges under the maritime law unless it is expressly provided by contract (Burley v. Gladstone, 3 Maul. S. 205), and some of the American courts have followed the English doctrine. Gage v. Morse, 12 Allen 410; Chicago, etc., Ry. Co. v. Jenkins, 103 Ill. 1. c. 598; Cleveland, C. C. & St. L. Ry. Co. v. Holden, 73 Ill. App. 582; B. & M. R. R. Co. v. Chicago Lumber Co., 15 Neb. 390; Crommelin v. N. Y. & Harlem R. R. Co., 4 Keys 90.
The authority of the case of Gage v. Moore is overturned by the later Massachusetts .case of Miller v. Mansfield, supra. The Nebraska case followed the case of Railroad Co. v. Jenkins; 103 Ill. 598, without comment.
Coming to the recent cases we find the following decisions hold that the right of lien exists independent of [15]*15contract: McGee v. Railroad, Miller v. Georgia R. R. & Banking Co., Kentucky Wagon Manufacturing Co. v. O. & M. R. R., Miller v. Mansfield, supra, and 4 Elliott on Railways, sec. 156.
The railroad commissioners of some of the States have recognized the rule and the right to enforce demurrage charges. The Kansas Commission in the case of Davis v. M., K. & T. Ry. Co., Commissioners’ Reports of Kansas, 1891, p. 21, the Iowa Commission in Rothschild v. Railroad; Commissioners’ Reports, 1887, p. 783; the Missouri Commission in the case of E. R. Darlington & Co. v. Central Car Ass’n of St. Louis, May 16, 1901.
The following is quoted from the opinion of Judge Toney, chancellor before whom the Kentucky Wagon Manufacturing Company case was first heard as presenting a sound and logical demonstration of the necessity and reasonableness of the rule:
“Without the right of making and enforcing reasonable rules and regulations as to the delivery of freight and tbe detention of their cars by consignees, railroads would be at the mercy of individual shippers. In order to fulfill the chief end of their creation, viz., the service of the public as common carriers, they should be left free to establish general and reasonable rules and regulations, governing the delivery of freight and charges for the unnecessary or unreasonable detention of their cars by consignees. It is a matter of the highest public interest that they should be accorded this right and power. Individual convenience should be subordinate to the public good, which demands expedition, regularity, uniformity, safety and facility in the movement of the freight of the country which must of necessity be materially obstructed if individual consignees are allowed, without let or hindrance, to convert freight cars on their arrival with cargoes of freight upon their sidetracks, into warehouses for the storage of freight at the suggestion of their convenience or in[16]*16terest. As we have seen, railroads are a public necessity, the general welfare of the country being dependent upon their untrammeled inter-connection, and untrammeled liberty to accomplish the legitimate public purposes of their organization. Promptness, regularity and safety in the transportation of passengers and freight are essential requisites to the successful administration of the railroad common carrier’s system of the country. These characteristics or qualities, are demanded by the public interest. Regularity and system in the movement of their cars, in the handling of freight both in receiving, transporting and delivering it, so that the public can know what to expect and what it can depend upon, are demanded of railroads by law and by public policy. But how can this be expected of railroads if their rolling stock may be tied up and waterlogged upon the private sidetracks and switches of private consignees to serve as storerooms and warehouses for their freight, without any power on the part of the railroad companies to enforce reasonable rules against such consignees, requiring diligence in the unloading and redelivery of their cars? These public carriers rely upon their rolling stock to meet the demands of the volume of business which they have to carry. How can they insure to consignees and shippers in general and to the public that facility of commercial interchange which they are required to afford both by charters and by public law? How can they furnish cars and transportation to shippers in general and discharge the volume of traffic business of their respective systems if their rolling stock can be locked up in private yards of special consignees? How can such carriers know with any reasonable degree of certainty whether their rolling stock at any given time is, or will be fully up to the demands of the business along their lines ? Promptness, uniformity and safety in the railroad traffic business of the country can only be secured by the adoption [17]*17and strict enforcement by railroad companies of uniform and reasonable rules and regulations, which shall be binding upon all shippers and consignees alike with reference to the reception, transportation and delivery of freight.
“These qualities in railroad administration, it requires no philosopher to see, are indispensable to the proper accommodation and service of the interests to the public; and it. should be the leading principle of action with all railroad managers to adopt and impartially enforce such rules and regulations as will most effectually secure those desired ends for the public.” 50 Am. and Eng. Ry. Cases, 90.
It is conceded by the parties that forty-eight hours is a reasonable time in which to unload a ear and that one dollar per car per day is a reasonable demurrage charge for their detention after forty-eight hours.
We think the right to make the rule and to enforce it is pretty thoroughly established by the modern American cases and that the defendant had a lien upon the lumber which had not been unloaded from the Oregon car. Barker v. Brown, 138 Mass. 340; Steinman v. Wilkins, 42 Am. Dec. 254; Schmidt v. Blood, 24 Am. Dec. 143.
The bill of lading for the Oregon car expressly provided forty-eight hours only should be allowed for unloading. For the Chippewa Falls car, the time stipulated for unloading was forty-eight hours but the right to remove the car and warehouse the lumber was restricted to seventy-two hours. The bills of lading were contracts not only for the shipment of the lumber, but they prescribed the duties of the plaintiff after they reached their destination. Gashweiler v. Railroad, 83 Mo. 112. Under the contract, the time given plaintiff to unload Chippewa Falls car had not expired when defendant took the lumber away from plaintiffs’ yard. The taking of this lumber therefore was unjustifiable. [18]*18In respect to the other car the time for unloading had expired and the defendant, under the evidence, had a right to take the lumber into its possession and hold it at the expense of the plaintiffs for the payment of its demurrage charge, unless plaintiffs were excused for non-compliance with its contract to unload in forty-eight hours on account of an extreme condition of the weather. That this excuse is unavailing, we think is well settled by the authorities. Hutchinson states the rule as follows: “If the carrier has agreed to carry the goods to their destination and there deliver them within the prescribed time, he will be held to a strict performance of his contract and no temporary obstruction or even absolute impossibility will be a defense for failure to comply with the agreement.” Hutchinson on Carriers, sec. 317.
In Harrison v. Mo. Pac. R. R. Co., 74 Mr. 1. c. 371, the Supreme Court, speaking through Norton, J., said: “"Where a party by contract agrees to do a prescribed thing in a prescribed time, he is liable for nonperformance of the contract, notwithstanding the fact that his non-fulfillment of the contract was occasioned by inevitable and unavoidable accident. ’ ’ To the same effect is Gelvin v. Railroad, 21 Mo. App. (K. C.) 273; Miller v. Railroad, 62 Mo. App. (K. C.) 252; Waters v. Richmond & Danville Ry. Co., 16 L. R. A. 834; Atkinson v. Ritchie, 10 East 530; Wareham Bank v. Burt, 87 Mass. 113; Nelson v. Odiorne, 45 N. Y. 489; Cutliff v. McAnally, 88 Ala. 507; Cassady & Dunn v. Clarke, 7 Ark. 123; Ward v. The Hudson River Building Co., 125 N. Y. 230.
There are numerous other cases in support of this doctrine. The cases which seemingly announce a contrary doctrine will be found to be cases involving obligations where the thing to be done is one of duty and not of private contract; as in Ballentine v. N. Mo. R. R., 40 Mo. 491, where it was held a carrier was excused for failing to deliver goods in a reasonable time on ac[19]*19count of delays occasioned by an extraordinary snow storm. See also Davis v. Railroad, 89 Mo. 340; Cunningham v. Wabash R. R. Co., 79 Mo. App. (K. C.) 524; Wittemore v. Sills, 76 Mo. App. (K. C.) 248. Also in cases where the contract is on the basis of the continued existence of a given person. or thing. In the latter class the condition is implied that if the performance becomes impossible on account of the sickness or of the perishing of the person or thing, the performance will be excused, as in Walker v. Tucker, 70 Ill. 527, where the exhaustion of a coal mine was held to excuse further performance of a contract or lease; as in Hall v. School District, 24 Mo. App. (K. C.) 213, where the burning of the schoolhouse was held to relieve the school district from its contract of employing the teacher; as in Wolffe v. Howes, 20 N. Y. 197, where sickness of the person employed was held to relieve him from a performance of his contract of employment; as in Lord v. Wheeler, 67 Mass. 282, where the contract was to repair a house and the house was destroyed by fire; as in Butterfield v. Byron, 12 L. R. A. 572, where a contract to furnish part only of the labor and material for the erection of a building was held as discharged on the destruction of the building by fire before it was completed, and as in Dexter v. Norton, 47 N. Y. 62, where it was held that the destruction of personal property before title had passed, after the contract for the sale ■of the property, relieved the vendor from liability for failure to deliver.
Our conclusion is, that, under the pleadings and the ■evidence, the defendant was not guilty of trespass; that it had a right to take possession of the car shipped from Oregon and to store the lumber remaining in the car until its demurrage charges were paid, but that it had no right to take the car and lumber therein shipped from Chippewa Falls, the time agreed upon in which it might be removed not having expired, and that its taking and retention of the lumber was a conversion thereof to its [20]*20own nse and that plaintiffs, having paid the freight, are entitled to recover the market value of that lumber at St. Louis on the day it was taken by the defendant.
The judgment is reversed and the cause remanded.
Barclay and Goode, JJ., concur; the-former concurs in the result.