Hite v. Cincinnati, I.&W.R. Co.
| Decision Date | 20 June 1918 |
| Docket Number | No. 11973.,11973. |
| Citation | 284 Ill. 297,119 N.E. 904 |
| Court | Illinois Supreme Court |
| Parties | HITE v. CINCINNATI, I. & W. R. CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Coles County; John H. Marshall, Judge.
Action by Charles A. Hite against the Cincinnati, Indianapolis & Western Railroad Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.
H. A. Neal, of Charleston, and Dyas & Dyas, of Paris, for appellant.
George B. Gillespie, of Springfield, for appellees.
On March 20, 1880, Charles A. Hite and wife, Marcus Hite and wife, and Mrs. L. E. Hite, conveyed a strip of land in Coles county to the Danville, Olney & Ohio River Railroad Company for and in consideration of the free transportation of the grantors and R. L. Hite, a son of Charles A. Hite, during their natural lives, upon all trains carrying passengers over that railroad. The railroad company took possession of the real estate and used it as a part of its right of way, and the contract was kept by the company and its successors until December 31, 1915, when appellees, the successors of the grantee in the deed, refused to issue any further passes under the terms of the contract. Charles A. Hite thereupon brought an action of ejectment in the circuit court of Coles county to recover possession of the land conveyed to the railroad company for right of way. Judgment was rendered in favor of appellees, and this appeal followed.
The Public Utilities Act, approved June 30, 1913, and by its terms effective and in force on January 1, 1914, provides by section 37 thereof as follows:
‘Except as in this article otherwise provided, no public utility shall charge, demand, collect or receive a greater or less or different compensation for any product, or commodity furnished or to be furnished, or for any service rendered or to be rendered, than the rates or other charges applicable to such product or commodity or service as specified in its schedules on file and in effect at the time, except as provided in section 35, nor shall any such public utility refund or remit, directly or indirectly, in any manner or by any device, any portion of the rates or other charges so specified, nor extend to any corporation or person any form of contract or agreement or any rule or regulation or any facility or privilege except such as are regularly and uniformly extended to all corporations and persons.’
Appellees relied upon the provisions of this section in declining to comply further with the provisions of the contract.
Both sides agree that the condition in the deed conveying the real estate in question to be used for right of way is a condition subsequent. The performance of a condition subsequentis unnecessary where it is opposed to positive law or public policy. If an estate has vested and the condition upon which it is to be divested is void as against public policy the estate will be freed from the condition. Gray v. Chicago, Milwaukee & St. Paul Railway Co., 189 Ill. 400, 59 N. E. 950. ‘The rule at law is that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, by the act of God, or the law or the grantor, the estate having once vested, is not thereby divested, but becomes absolute.’ Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447. In such a contract as this, if the condition has been performed the obligation necessarily is discharged, and it is also discharged if instead of the condition having been performed its performance has been prevented by the act of the law. Cowley v. Northern Pacific Railway Co., 68 Wash. 558, 123 Pac. 998,41 L. R. A. (N. S.) 559. If section 37 is a valid enactment and affects the provisions of this contract, under the rule just announced the obligation of the contract must be regarded as having been discharged, as its performance is prevented by the statute.
Appellant contends that the act is not valid as...
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...326 Ill. 65, 156 N. E. 766;State Public Utilities Comm. v. City of Quincy, 290 Ill. 360, 125 N. E. 374;Hite v. Cincinnati, Indianapolis & Western Railroad Co., 284 Ill. 297, 119 N. E. 904. Neither municipal franchise ordinances which have been accepted and acted upon by grantee utility comp......
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