Chicago & North Western Ry. v. First Nat. Bank
| Decision Date | 18 December 1952 |
| Docket Number | No. 10629.,10629. |
| Citation | 200 F.2d 383 |
| Parties | CHICAGO & NORTH WESTERN RY. v. FIRST NAT. BANK OF WAUKEGAN. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lowell Hastings, Drennan J. Slater and Edgar Vanneman, Jr., Chicago, Ill., John H. Gobel, Chicago, Ill., for plaintiff-appellant.
Emmett J. McCarthy and George R. Lyon, Chicago, Ill., for appellee.
Before KERNER, FINNEGAN and SWAIM, Circuit Judges.
Plaintiff filed its complaint in the District Court praying that the court enjoin defendants from moving sand, heavy machinery and equipment across the right of way on its main line near Waukegan, Illinois.
Defendants moved to dismiss the action on the ground that the complaint as amended failed to state a claim upon which relief could be granted.
On hearing arguments of counsel and on briefs submitted, the District Court entered an order granting the motion, striking the complaint as amended and dismissing the action, and this appeal followed.
In its complaint, plaintiff alleged that it is a corporation organized under the laws of Wisconsin, and that it is a resident of that State; that the defendant, the First National Bank of Waukegan, as Trustee, is a national banking association doing business where it is a resident, at Waukegan, Illinois; that the other defendants are citizens and residents of Illinois; that the amount involved, exclusive of costs and interest, is $3,000; that jurisdiction is based on diversity of citizenship. The complaint further alleges that plaintiff is the owner of a certain strip of land (legally described) which constitutes part of its right of way and over which it operates many high speed trains which carry many passengers, freight, mail, express and baggage in interstate commerce; in an amendment to its complaint plaintiff alleges that the First National Bank of Waukegan, as trustee under a trust, is the owner of property near the said right of way. The complaint further alleges that the defendant beneficiaries of the trust have arranged with Stanley Dembinski, also a defendant, for the hauling of sand from their property and the moving of trucks, machinery and equipment across said right of way. Some trucks, equipment and machinery have already been moved across the unprotected right of way and defendants threaten that more of such movements will be so made in the future. The complaint further alleges that the moving and hauling has been done, and is threatened to be done, at a former farm crossing over plaintiff's right of way. The farm crossing was established by warranty deed, under date of August 25, 1854, between Abby M. and William Farnham, grantors, and the Chicago and Milwaukee Rail Road Company, grantee, predecessor in interest of plaintiff.
The deed provided in part:
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