Dickman v. Madison County Light & Power Co.

• Decision Date: 21 October 1922
• Docket Number: No. 14209.,14209.
• Court: Illinois Supreme Court
• Parties: DICKMAN v. MADISON COUNTY LIGHT & POWER CO. et al.

304 Ill. 470

136 N.E. 790

DICKMAN

v.MADISON COUNTY LIGHT & POWER CO. et al.

No. 14209.

Supreme Court of Illinois.

Oct. 21, 1922.

Ejectment by William Dickman against the Madison County Light & Power Company and another. From an adverse judgment, plaintiff appeals.

Reversed and remanded.Appeal from Circuit Court, Madison County; Louis Berureuter, judge.

J. F. Eeck, of Edwardsville, for appellant.

Terry, Gueltig & Powell, of Edwardsville (Burton & Hamilton, of Peoria, of counsel), for appellees.

DUNCAN, J.

William Dickman, appellant, brought suit in ejectment in the circuit court of Madison county against the Madison County Light & Power Company and the St. Louis, Springfield & Peoria Railroad (hereinafter called the traction company), charging by his declaration that a strip of land 75 feet wide, the center line of which runs across the north half of the southwest quarter of section 29, township 4 north, range 8 west of the Third principal meridian, in said county, is claimed by him in fee, which is occupied and used by the traction company for its right of way, for railroad purposes, and that the Madison County Light & Power Company entered onto said premises and now unlawfully withholds the same from plaintiff. Two other counts were filed by appellant. Appellees filed the general issue and one special plea, in which plea it is alleged, in substance, that no demand for possession had been made by plaintiff before the suit was brought, and to which a general and special demurrer was sustained by the court. Appellees stood by their special plea. By agreement the trial was before the court without a jury, in which the court rendered judgment against appellant.

In 1905 the strip of land in question was condemned for railroad purposes by the St. Louis & Northeastern Railway Company. By mesne conveyances its rights therein were obtained by the traction company in 1910. The traction company operates its system by electricity. At the time the land was condemned for railroad right of way it was owned by William and John T. Dickman and Elizabeth Schleuter, brothers and sister, as tenants in common, who inherited it from their mother, Mary A. Dickman. On September 4, 1915, John F. Dickman and wife and Elizabeth Schleuter and husband by quitclaim deed conveyed their interests to appellant in the land through which the right of way runs, ‘excepting the right of way over the same of the St. Louis & Northeastern Railway.’ Since 1915 appellant has been the owner of the land on each side of the right of way, and has been in possession and the owner of an undivided one-third of the right of way strip in fee since it was condemned, subject to the possession of the traction company as and for a railroad right of way. The parties to this suit claim from a common source of title. Mary A. Dickman, and appellant filed an affidavit of such common source of title.

According to the showing in the record, the traction company, the first two or three years it operated its line over the strip of land in question, outgrew two power houses that it built to generate electricity to operate its road-one at Riverton and the other at Edwardsville. It then became necessary for it to decide on the building of a new power plant. It also appears that at the same time it became necessary that the Madison County Light & Power Company enlarge its distribution system for furnishing electricity to various industries. The traction company decided to locate its third power plant at Venice, on account of the water to be obtained from the Mississippi river. An arrangement was entered into between appellees by which the power company should pay a portion of the fixed charges of the Venice power plant and that the traction company should sell to the power company excess current to be generated by the new plant, because this plan would enable the power company to obtain power cheaper for distribution to its customers and at the same time would enable the traction company to operate its railroad more economically. The electricity used for operating the traction company's cars is furnished from its generating plant at Venice, and the electricity so used is carried by three high-tension wires along its right of way, carrying 33,000 volts and a 25-cycle current. Before being used for operating cars, this 25-cycle current is reduced from 33,000 volts to 370 volts and from an alternating to a direct current of 600 volts. This change is made before the current leaves the generating station. In 1912 the traction company erected on its poles and cross-arms on its right of way three additional high-tension wires, carrying electricity of 33,000 volts and a 60-cycle alternating current, which is generated by the traction company by the same machinery and plant at Venice that generates the 25-cycle alternating current for the operation of its cars, and the 60-cycle alternating current is measured at the plant and sold to the power company and by the power company is distributed over these wires to its customers at Edwardsville, Riverton, Wood River, East Alton, Hamel, and other places along the traction company's right of way. The customers of the power company use the electricity so sold them for light, heat, and power. The current thus carried over the three wires is changed before it leaves the plant at Venice by frequency-changers from 25-cycles to 60-cycles. After it leaves the plant there is no equipment by which the current can be reduced to that required for operating the interurban cars. The traction company also purchases some of this current from the power company for lighting its stations, but by far the greater part of it is sold to private persons.

The testimony in the record is to the effect that the power company owns the three hightension wires over which it receives its current from the traction company, and that the traction company erected these wires and maintains them. The power plant at Venice produces for the traction company and for the power company an excess current of about 50 per cent. more than is used for the operation of the interurban cars and other uses of the road, and when producing this excess current the plant is much more efficient and less expensive to operate. There is some evidence in the record to the effect that the 60-cycle current of the power company may be used as an emergency supply for the railway in case there should be a break or interruption of the wires carrying the 25-cycle current for the operation of its cars, but the evidence does not show that such an emergency has ever arisen or such use employed by the traction company. There is also evidence in the record to the effect that the freight carried by the traction company on its line amounted to very little in the early years of the operation of its railroad, but that the carrying of freight has enormously increased in the last few years, until at the time of the trial the company was operating in and out of St. Louis and the tricities, freight trains of from 10 to 20 cars daily, thus showing that there may some time in the future arise a necessity for more power or electricity than it is at present using, and even the entire power generated at the plant. The changing of the 60-cycle current on the wires of the power company for use in operating the traction company's cars would necessitate the cutting off of a considerable part of the power from the customers of the power company even when used temporarily by the traction company, and if such use were permanent it would appear that it might eventually take all of such power from said customers. The record does not disclose the agreement or the terms made between the power company and the traction company with reference to any future use of the power company's current by the traction company and whether the same be temporary or permanent, and the character or terms of that agreement are not more definitely given than we have already stated. There is also evidence in the record to the effect that it is much more economical for the railroad company and the power company to have the arrangement by which the excessive power generated by the power plant at Venice may be sold to the power plant and distributed as aforesaid, and that the public is better served thereby by both companies; that it is reasonably necessary for the traction company to generate such excess current and power for its possible needs in the future; that it is customary for other similar railroads to thus provide for their future wants and to sell their excess power until the emergency arises for its future use by the railroads themselves.

The contention of appellant is that the construction and use of the power company's wires for general commercial purposes are an additional burden on the fee, which was not warranted by the judgment and order for condemnation of the strip for railroad right of way, and he therefore his a right to oust the power company by his suit in ejectment.

The first question raised by the parties is upon the court's ruling on the demurrer to appellees' special plea. The special cause of demurrer assigned by appellant is that the plea concluded to the country but should have concluded with a verification. He also contends that a demand in an ejectment suit is not necessary where there is no privity between the parties with respect to the premises sought to be recovered. In other words, where the parties, respectively, claim under independent hostile titles, the law of notice to quit or demand of possession has no application. This latter contention is supported by the cases of Harland v. Eastman, 119 Ill. 22, 8 N. E. 810, and Mapes v. Vandalia Railroad Co., 238 Ill. 142, 87 N. E. 393,128 Am. St. Rep. 117. But this rule has no application to the question whether or not the demurrer was properly sustained by the court. The real question whether or not a demand was necessary in this suit depends upon whether or...