Cleveland, C., C. & St. L. Ry. Co. v. Munsell

• Decision Date: 24 October 1901
• Citation: 61 N.E. 374,192 Ill. 430
• Court: Illinois Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. et al. v. MUNSELL.

192 Ill. 430

61 N.E. 374

CLEVELAND, C., C. & ST. L. RY. CO. et al.

v.MUNSELL.

Supreme Court of Illinois.

Oct. 24, 1901.

Error to circuit court, McLean county; Colostin D. Myers, Judge.

Bill for injunction by Eleazer Munsell against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others to restrain the closing of an underground crossing. From a judgment for complainant, defendants bring error. Reversed.

A. E. De Mange and John T. Dye, for plaintiffs in error.

Rowell, Neville & Lindley, for defendant in error.

In 1869 the Danville, Urbana, Bloomington & Pekin Railway Company condemned a right of way 100 feet wide through Munsell's farm, of 364acres, in McLean county, and paid to him $150, the amount allowed as compensation. The company built its road the same year on its right of way, dividing the farm so as to leave about 100 acres, mostly timber and pasture land, on the north side of the railroad, and the rest, containing the residence and other buildings, on the south side. In building the road a trestle bridge of two bents was built by the company over a slough or ravine which crossed the right of way. In 1870 it fenced in its right of way to points opposite the abutments of the bridge, and from those points built wing fences and connected them with the abutments, leaving the space beneath the bridge open for the free passage of water and drift in wet weather. When the bridge was first built the open space beneath the bridge was 10 or 12 feet in width, and Munsell's hogs, cattle, and horses passed and he drove them back and forth beneath the bridge, from one field or pasture to another; but there was no agreement between him and the company on the subject. Munsell put up sufficient poles or bars across this passway under the bridge to keep his stock inclosed on one side or the other, to suit his convenience. In 1884 he had litigation with the company, and it is his contention that, when conferring respecting it, the company, through its officers or attorneys, agreed to comply with his request to move back one of the wings of its fence so as to allow him to fill in and make a wagon crossing through one of the openings under the bridge, and that the company did soon thereafter move back the cross fence, and that he then filled in and made the crossing for his own use, and thereafter used it in hauling wood and other material on the farm from one side of the railroad to the other. Munsell continued to use the passway under the bridge in the ways mentioned, and when not prevented by mud or water, until about 1897, when the company built a new bridge, and put in timber props in the opening which he had used as a wagon way, and was preparing to put in a large iron pipe through which to carry off the water, and to fill in and make a permanent and solid embankment of earth in place of the wooden bridge and trestle, and thus to destroy his passway under the bridge altogether. When the railroad was first built a grade farm crossing was made by the company for Munsell's use about 15 rods west of the bridge, and afterwards, at his request and for his convenience, it was moved nearer to the bridge. This crossing was planked, and it has been maintained and kept in repair by the company and used by defendant in error ever since. The court below approved the master's report, and entered a decree perpetually enjoining plaintiff in error from closing or obstructing the passway or crossing under the bridge, and this writ of error was sued out to reverse the decree.

CARTER, J. (after stating the facts).

The first point made by the plaintiff in error is that a court of equity has no jurisdiction to enjoin the destruction of the easement claimed by the defendant in error in the alleged underground crossing, but that the defendant in error has an adequate remedy at law. We have decided that equity has jurisdiction in such cases. McCann v. Day, 57 Ill. 101;Field v. Barling, 149 Ill. 556, 37 N. E. 850,24 L. R. A. 406, 41 Am. St. Rep. 311;Smith v. Young, 160 Ill. 163, 43 N. E. 486;Carpenter v. Electric Co., 178 Ill. 29, 52 N. E. 973,43 L. R. A. 645, 69 Am. St. Rep. 286. But, even if it were open to question whether the rule announced in the cases cited is applicable to the case at bar, the plaintiff in error should have raised the question by its pleadings below, and not here for the first time. It was not alleged in the answer that there was an adequate remedy at law, and the case is not one which is wholly foreign to equity jurisdiction. Smith v. Young, supra.

The circuit court based its decree making the injunction perpetual upon two findings: First, that the complainant had been in the open, visible, and notorious possession and occupancy of said underground...