Illinois Cent. R. Co. v. Willenborg

• Decision Date: 12 May 1886
• Citation: Illinois Cent. R. Co. v. Willenborg, 117 Ill. 203, 7 N.E. 698 (Ill. 1886)
• Parties: ILLINOIS CENT. R. CO. v. WILLENBORG and another.
• Court: Illinois Supreme Court

117 Ill. 203

7 N.E. 698

ILLINOIS CENT. R. CO.

v.WILLENBORG and another.

Supreme Court of Illinois.

May 12, 1886.

Error to Effingham.

Green & Gilbert, for plaintiff in error.

John C. White, for defendants in error.

SCOTT, J.

The original bill in this case is for an injunction and relief, and was brought by the Illinois Central Railroad Company against Henry Willenborg and Frank Deckerman. It appears from the allegations of the pleadings the right of way on which the road of complainant is constructed divides lands owned by defendant Willenborg, and that a farm crossing over the land of complainant's road is necessary for the convenient use of the land by the owner and his tenants. Defendant Deckerman is a tenant of his co-defendant Willenborg, and has no other interest in the litigation. As early as 1852 the railroad company acquired the right of way over the premises by deed from Henirick Fisher, and soon after constructed its road over the same, and since then has operated its trains thereon. On the twenty-fifth day of May, 1882, defendants notified the railroad company to build or construct, for the use of the farm, a private crossing over its track at a certain point indicated, and that, if it did not build such crossing, defendants would proceed, under the statute, to construct it. The railroad company refused or neglected to build a crossing at the point indicated, or elsewhere on the farm; and, defendants having entered upon the work of constructing such crossing, the bill in this case was brought to perpetually enjoin the further prosecution of the proposed work. It is alleged as a ground of relief that, at the point where the notice to defendant required the crossing to be constructed, there is a deep cut, where it is alleged it would have been manifestly unsafe to make a farm crossing; that, when complainant purchased the right of way, it realized the danger of building a farm crossing at the point in question, and had voluntarily made a crossing, for the use of the owner of the land, at a point 300 feet north of the point now insisted upon, which for more than 20 years had been satisfactory.

The bill makes the point, sections 51 and 52, c. 114, Rev. St., under which it is alleged defendants had entered upon the right of way, and were constructing the crossing, are not obligatory on the railroad company, for the reason they were enacted many years since complainant received its charter from the state, under which it had constructed and operated its road, and, if enforced, the result would be the taking of the private property of the company for the private use and benefit of the adjoining land-owners, which, it is charged, cannot be done, under the constitution, without first making compensation. In their answers defendants insist that sections 51 and 52, cited, are applicable and binding on the railroad company, and, if enforced, will violate no provision of the constitution. They also insist upon the duty resting upon the company arising out of the clause of the deed from Fisher to the corporation, which obligated the company to erect and maintain for him, and to whose rights defendants have succeeded, convenient crossing, which is as follows: ‘It is understood that said company shall erect and maintain such crossings as may be necessary to the accommodation of persons whose lands are divided by said tract.’ They also deny that such crossing, when constructed, would be dangerous, either to the parties using it or to the railroad company. After filing their answer, defendants filed their cross-bill, alleging the duty of the company to construct the crossing both under the statute, and also under the covenants contained in the right-of-way deed. On hearing the evidence the circuit court dismissed the original bill for want of equity, and dissolved the injunction, with damages, and granted relief on the cross-bill. To reverse that decision complainant brings the case to this court on error.

There would seem to be no equitable consideration in support of the original bill, since complainant, by accepting the deed of the right of way, had covenanted to erect and maintain such crossing as may be necessary for the accommodation of persons whose lands are divided by the track of its road. Under that covenant it is and was the clear duty of the railroad company to erect and maintain a suitable farm crossing for the owners of the land divided by its track, and equity will hardly listen with much favor to the complaint of a party who seeks relief against obvious duty arising out of a covenant entered into upon a valuable consideration.

But the decision dismissing the original bill, as was done, may be sustained on the broad ground it was the duty of the company, under the statute, to construct suitable farm crossings for the use of the parties through whose lands its road-bed is constructed. Section 1 of the act of 1874 in relation to fencing and operating a railroad makes it the duty of every railroad corporation, within six months after its line is open for use, to construct farm crossings ‘when and where the same may be found necessary for the use of the proprietor of the land adjoining such railroad.’ Section 3 of the same act provides, whenever a railroad corporation shall neglect or refuse to build or repair such farm crossings as provided in that act, the owner or occupant of the lands adjoining such railroad, through which the railroad track is or may be laid, may give notice in writing to such corporation to build such crossing 10 days after service of notice. Section 4 provides, in case the corporation refuses to build such crossing after notice as provided in section 3, the owner or occupant of such land may build it, and may recover double the value thereof from the defaulting corporation, with damages.

Had similar provisions with these sections of the statute been incorporated in the charter of the corporation, or existed in some law that entered into its charter, it would hardly have been insisted the company would not be bound to observe them, or that their enforcement would violate any provisions of the constitution. The point is made, however, that these provisions are not obligatory on this corporation because they were enacted many years since it received its charter from the state. This is a misapprehension of the law. The regulation in regard to fencing railroad tracks, and the construction of farm crossings, for the use of adjoining land-owners, are police regulations, in the strict sense of those terms, and apply with equal force to corporations whose...