Chicago & E.I.R. Co. v. Hay
| Decision Date | 25 January 1887 |
| Citation | 119 Ill. 493,10 N.E. 29 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO & E. I. R. CO. v. HAY and another. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Iroquois county.
Bill for specific performance and injunction by the Chicago & Eastern Illinois Railroad Company, appellant, against Daniel Hay and Charles E. Barber, sheriff, appellees.
Wm. Armstrong, for appellant.
Doyle, Morris & Pierson, for appellees.
The original bill in equity in this case, filed July 21, 1884, by the Chicago & Eastern Illinois Railroad Company, set forth that that company and its predecessors had been for about 13 years in the use of, for the operation of its railroad, a strip of land, 100 feet in width, across the N. E. 1/4 of the S. E. 1/4 of section 28, township 29 north, of range 12 west of the second principal meridian, in Iroquois county, in this state; said strip lying along the west side of East avenue in the village of Papineau; that on July 21, 1884, complainant commenced proceedings for the condemnation of said strip of land, which were pending; that the defendant Daniel Hay had sued out of said court, and placed in the hands of the sheriff, a writ of execution to put the defendant in possession of the premises. The bill prayed for an injunction to restrain the defendant and sheriff from interfering with complainant's possession of the premises until the determination of the condemnation proceedings. A preliminary injunction was granted. On October 4, 1884, an amended bill was filed, setting out that the Chicago, Danville & Vincennes Railroad Company constructed the railroad; that at and before the time of the building thereof, one Alexander D. Hay was the owner of the S. 1/2 of the aforesaid quarter section, and that said Hay and one Cornell were the owners of the N. E. 1/4 of said quarter section, and the S. E. 1/4 of the N. W. 1/4 of said quarter section; that about June 1, 1871, the said Alexander D. Hay and Cornell entered into an agreement with the last-named company, whereby that company agreed to remove a station from the point where it had been previously located by the company, and locate such station on said premises for the benefit of said Hay and Cornell and the public, and build its line of railroad over and upon said premises, in consideration of which said Hay and Cornell agreed to convey to said railroad company, as soon as the railroad should be constructed, a strip of land 250 feet wide, being 125 feet on each side of the center line of the main track of the railroad as it should be thereafter located over and upon said premises; that afterwards, during the year of 1871, the said railroad company did, with full knowledge and consent of said Alexander D. Hay and Cornell, build its line of railroad, side tracks, and station-houses on said premises pursuant to the contract, and took possession of said strip of land 250 feet in width; that on April 17, 1877, the entire line of railroad of said Chicago, Danville & Vincennes Railroad Company was sold under a decree of foreclosure, and bought by a purchasing committee of the first mortgage bondholders; that said purchasers operated the railroad until August 28, 1877, when they transferred the same to the Chicago & Nashville Railroad Company, a corporation created to receive and operate the same; that on said twenty-eighth of August the said last-named company and the State Line & Covington Railroad Company were consolidated, forming the Chicago & Eastern Illinois Railroad Company; that on March 8, 1881, the last-named company and the Danville & Grape Creek Railroad Company were consolidated, forming the Chicago & Eastern Illinois Railroad Company, the complainant herein. The complainant further avers that after such agreement, and while the railroad company was in full use and possession of said premises, the said Alexander D. Hay and Cornell were adjudged bankrupts, and the said Daniel Hay, the defendant, was appointed assignee, who, as such assignee, conveyed all interest of said Alexander D. Hay and Cornell in the N. E. 1/4 of said quarter section, and the S. E. 1/4 of the N. W. 1/4 of said quarter section, to one William S. Hay, in consideration of the sum of one dollar; that afterwards said William S. Hay conveyed said 40-acre and 10-acre tracts to said Daniel Hay; that the said Chicago, Danville & Vincennes Railroad Company and its successors had been in the open and notorious possession of said strip of land, 250 feet in width, from the time of building said railroad to that time; that it was only within the last few days previous that complainant had learned the facts stated in the amended bill of the making of such agreement, and with regard to the building of the railroad, stating the reasons for the inability to ascertain said facts sooner, although due diligence had been used to that end.
The amended bill prays for a specific performance of the alleged agreement, and a conveyance of the 250 feet in width above described. On hearing, the court dismissed the bill, in respect to specific performance, and continued the bill otherwise, and continued the injunction, and decreed the complainant to pay all the costs of the proceeding. The complainant appeals.
It appears from the evidence that the Chicago, Danville & Vincennes Railroad Company had, in the fall of 1870, in the construction of its line of railroad from the city of Chicago, reached the county of Iroquois; that it had built its track, and was operating its road, to a point in that county about three-fourths of a mile north of the property in controversy in this case, where it had established a temporary station, and that it had graded its road over the quarter section of land mentioned in the pleadings; that one Alexander D. Hay became desirous of having a station located about the center of the said quarter section, and in December, 1870, an arrangement was made between him and the person engaged in procuring the right of way for the company, by which the railroad should be located over this quarter section of land, and a station should be located at or near the center of the same; and that, in consideration of such location, said Hay was to give the railroad company, for its use for main track and side tracks and depot grounds, a strip of land, 250 feet in width, through the quarter section. During the month of March, 1871, Hay consummated the arrangement with Mr. J. E. Young, the contractor and general manager of the railroad, in the presence of Mr. Burton, a citizen of the neighborhood, who was deputy county surveyor, and had an interest in the location of the station. The evidence goes to show, though with less distinctness than the making of the contract is shown, that at this time a memorandum of the agreement was made and signed by Hay, but that it is lost, or cannot be found.
In the spring of 1871 the railroad company built its line of railroad over this quarter section, locating its station at about the center of the same, where it has ever since been. The company removed a couple of buildings it had at the temporary station just north on to these premises. While the side track was being built thereon, Hay was present on several occasions, and made suggestion to the contractor as to its location, and stated over to him the contract. On June 1, 1871, said Hay and Daniel K. Cornell caused a plat to be made by said Burton, surveyor, which was filed in the clerk's office of Iroquois county on August 1, 1871, laying out the entire N. E. 1/4 of said quarter section, and the S. E. 1/4 of its N. W. 1/4, as a town, known as Papineau, on which the railroad is designated, and 250 feet in width of ground is set apart and designated as railroad property. There was such other testimony of admissions of said Hay of the making of such a contract. At the time the contract was made said Alexander D. Hay was not the owner of the legal title of the quarter section. The Illinois Central Railroad Company had sold the quarter section in lots of 40 acres each, and executed contracts therefor, but no deeds. On March 31, 1871, the Illinois Central Railroad Company, the then owner, made a deed for the N. E. 1/4 of said quarter section to Alexander D. Hay and Daniel K. Cornell, his son-in-law; and on May 18, 1871, Cyrel Tebo, the grantee of the Illinois Central Railroad Company, made a deed for the S. E. 1/4 of the N. W. 1/4 of said quarter section to said Hay and Cornell; the lands in each instance having been purchased by said Hay, and the entire consideration paid by him. In December, 1870, said Hay purchased the S. W. 1/4, and in April, 1871, the S. E. 1/4, of the said quarter section.
The evidence of the making of the contract alleged is satisfactory and conclusive. There is no evidence in contradiction, and but some two or three circumstances which are relied upon as showing there was no such contract made. Mr. Young testified that...
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