Illinois Central R. R. v. Wathen

17 Ill. App. 582, 1885 Ill. App. LEXIS 409

• Court: Appellate Court of Illinois
• Decided: December 4, 1885
• Status: Published

Opinion

Welch, J.

In the view we take of this case we shall confine our examination to the third and fourth assignments of error. Has the condition of the grant been violated?

, Conceding that appellant's title depends on the moaning of the phrase “ railroads and depot purposes,” the real controversy is whether the company in permitting, without the payment of rent, the erection and use of elevators, corn cribs, lumber yards and lime houses, on the ground in question, is such a violation of the terms of the grant as will warrant the court in restraining the further use for such purposes and compel appellants to respond in damages.

A railroad purpose for which a railroad company holds land is such as may he necessary for the construction and maintenance of its railroads and stations, depots and other accommodations, necessary to accomplish the object for which the corporation is created. Justice Caton in C., B. & Q. R. R. Co. v. Wilson, 17 Ill. 126, in defining what a railroad company has power to do in acquiring and using land, quotes the statute then in force as follows: “ To purchase and by grants and voluntary donations receive, and by its officers, engineers, surveyors and agents enter upon, take possession of and hold and use all such lands and real estate and other property as may be necessary for the construction and maintenance of its rail, roads and stations, depots and other accommodations, necessary to accomplish the object for which the corporation is created.” Under the statute he holds that a workshop is included, and in Law v. Galena & Chicago Union Railroad Co., 18 Ill. 325, it is held that a paint shop is included by the terms of the same statute. Chapter 114, Rev. Stat. 1874, section 20, subsection 3, provides that such corporation shall have power “to pmrchase, hold and use all such real estate and other property as maybe necessary for the construction and use of its railway, and the stations and other accommodations necessary to accomplish the objects of its incorporation, and to convey the same when no longer required for the use of such railway. And subsection 8 provides that they shall have power “ to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery, for the construction, accommodation and use of passengers, freights and business interests, or which may be necessary for the construction or operation of said railway.” Section 80 of the same chapter provides, among other tilings, that railroads shall receive grain in bulk, and load the same either upon its track at its depot, or at any warehouse adjoining its track or side-track when demanded.

“ Whether or not a particular act be authorized is often a question requiring nice discrimination. A transaction may ' prima facie appear to be wholly foreign to the business for which a corporation was formed, and yet if it be auxiliary to any legitimate purpose of the company and adapted to carry ' out the same more advantageously, is impliedly authorized.” Morawitz on Private Corporations, section 190. In the case of the Grand Trunk R. R. v. Richardson, 91 U. S. 454, Richardson had erected and used a saw-mill on the right of way of the railroad company, which was destroyed by fire started by a locomotive, and this was an action by the owner of the saw-mill against the railroad company to recover for the value of the mill so- destroyed, and it became a material question whether the mill was rightly there or not. Justice Strong says, “If-the buildings of the plaintiff were rightfully where - they were, if there was no trespass on the roadway of the com-0pany, it was clearly pertinent to be shown. And while it must be admitted that a railroad company has the exclusive control of all the land within the lines of its roadway, and is not at liberty to alienate any of it so as to interfere with the full exercise of the franchise granted, we are not prepared to assert that it may not license the erection of buildings for its convenience even though they may also be for the convenience of others. It is not doubted that the defendant might have erected similar structures on the ground on which the plaintiff’s buildings were placed, if in its judgment the structures were convenient for the receipt and delivery of freight on its road. Such erection would not have been inconsistent with the purpose for which its charter was granted, and if the company might have put up the buildings, why might it not license others to do the same thing for the same object, namely the increase of its facilities for the receipt and delivery of freight. The public is not injured and it has no right to complain, so long as a fre,e. and safe passage is left for the carriage of freight and passengers.” The rule deducidle from this opinion is, that if the. company, to facilitate its business, could have erected similar structures, it could license others to do the same thing for similar purposes. Justice Ranney, in Gessy v. C. W. & Z. R. R. Co., 4 Ohio St. 327: “ Indeed, without the use of grounds upon which to receive and discharge freight and passengers the track would be useless, and if the proceeding could only be referred to that provision of the constitution which specially .regulates the appropriation for right of way, there could be very little doubt that such indispensable appendages would be covered by its terms.” “ Convenience and consequent cheapness of transportation are in most cases essential and in many vital to their maintenance.” Green, J., in Getz’ Appeal, Am. & Eng. R. R., Vol. 3, page 193.

The principal use to which the-right of way is put in small towns and villages is to furnish places for warehouses and storage for commodities, carried or to be earned by the road, and these warehouses and places of storage are used by private parties for private gain. But at the same time the use is ■ a public use, a railroad use, because it greatly facilitates and accommodates the carrying out of the objects of the corporation, and is in fact necessary to a proper carrying out of these objects. In N. Y. C. & H. R. R. R. v. M. G. & S. E., 63 N. Y. 326, Justice Miller says: “ It is claimed that the design of the proposed acquisition is also for collateral enterprises, and among others, for the benefit of the stock yards, elevators, and to meet the requirements of this class of business to be carried on in connection therewith by other persons outside of the company. This evidently is not the purpose of the application. All of these may follow as a consequence^ and some, if not all of them, may be very properly connected with the business of a great railroad corporation.” In this case there is no claim that this occupancy in any way interferes with the convenience of the public, or was any damage to the complainant or any prejudice to the railroad companies in the discharge of their duties to the public. Complainant’s sole claim is that under this clausé in the deed he ought to recover from these occupants the rental value of the ground, and that the railroad companies ought to be enjoined from permitting such occupancy without his consent. The evidence discloses that this occupancy facilitates the business of the railroad companies, that it is necessary and is the universal practice in the western States to permit such use of their right of way at stations. The lumber and grain business constitutes a very large part of the business of all the railroads in this country, and without these facilities for receiving, storing and discharging the same, the transportation of such articles by rail would be greatly impeded if not wholly destroyed. The evidence further shows that the railroad companies have received no rent and that these buildings were erected and used for the purposes for which they are now used, prior to the deed of appellee made in 1879, and were so used at the time of his making his deed, that he saw the buildings as they were being erected. It is claimed by appellee that the case of Proprietors of Locks and Canals v. Nashua & Lowell R. R. Co., 104 Mass. 1, is decisive of this case. In that case the defendants had converted certain buildings from their original design into private stores or shops, and they were occupied for the general purposes of trade and mechanical and manufacturing business by lessees,, having no other connection with the operations or interests of the corporation than as its tenants paying rent. Such occupation and use placed them beyond the scope of the corporate purposes and functions. The occupancy by the lessees in the case at bar is to facilitate the business of the railroad companies, to furnish needed and necessary accommodations for the receipt, storage and discharge of freight, and is without rent.

It is clear that under the statute of this State, "chapter 114. section 18, subsection 3 of section 20, that railroads have the power to acquire and hold real estate to the extent that may be required for the purposes of its incorporation, the transac. tion of its business, or for its depots, stations, buildings, machine and repair shops, or for right of way, or other accommodations necessary to accomplish the object of its incorporation. And by subsection 8 of section 20, same chapter, the right of way is given . to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery for the construction, accommodation and use of passengers, freights and business interests, and which may be necessary for the construction or operation of said railway. Under the statute of 1849, which was not as broad in its term as this statute, it was held that repair and paint shops were included; they were held to be embraced in the term, u other accommodations necessary to accomplish the object of its incorporation,” used in that statute. One of the leading branches of the business of railroads is that of carrying freight. In order that it may carry on this business with facility and dispatch, it is necessary to have suitable grounds and buildings for the receipt and deposit of freight to be transported and for the discharge of freight received. All such grounds and buildings are clearly within the power given. And under the authorities above referred to of Morawetz on Private Corporations, 4th Ohio Stat. 63 N. Y. and 91 U. S., the ground and buildings that were used by the lessees in this case were necessary to enable these railroad companies to carry on their business as carriers of freight with dispatch and convenience. If the ground and buildings had been used by the railroad companies themselves, in the same way and for the same purposes that they have been used by the lessees, their right to so use them would no* and could not have been questioned. Does the fact that such right is permitted by the railroad companies to the lessees without rent affect the question ? Under the authority in 91 U. S. supra, whatever could be done by the railroad companies under their powers to facilitate their business could be permitted to be done by their license to others. The evidence in this case clearly establishes that the use to which the ground and buildings has been put is to facilitate the business of these railroad companies in the receipt, transportation and discharge of freights.

We hold that such use does not violate the terms of appellee’s grant. We hold, further, that appellee by his grant is es-topped from claiming that the use is not within his grant, the use to which it is now applied being the same that it ivas Avhen the grant was made. We are of the opinion that the court erred in granting the injunction and in not dismissing the hill.

For the errors herein indicated this cause is reversed and remanded Avith directions to dissolve the injunction and dismiss the hill.

Eeverscd and remanded with directions.