Leitch v. Hine

• Decision Date: 20 March 1946
• Docket Number: No. 29064.,29064.
• Parties: LEITCH et al. v. HINE et al.
• Court: Illinois Supreme Court

393 Ill. 211

66 N.E.2d 90

LEITCH et al.

v.HINE et al.

No. 29064.

Supreme Court of Illinois.

March 20, 1946.

Appeal from Circuit Court, Cook County; Robert J. Dunne, Judge.

Suit by Dollie F. Leitch and others against William A. Hine, Chicago Junction Railway Company, and others to recover damages for dumping of refuse on certain property, for injunctional relief enjoining further trespasses, and for other purposes. From a decree dismissing second amended complaint, plaintiffs appeal directly to the Supreme Court.

Affirmed.

James J. Barbour, of Evanston, and Edward H. S. Martin of Chicago, for appellants.

Winston, Strawn & Shaw, James H. Cartwright, Frank B. Gilmer, Sidney C. Murray, Marvin A. Jersild, Richard O. Olson, Charles J. Faulkner, Frederick R. Baird, John P. Doyle, Marcus Whiting, William N. Strack, and Neal J. Huff, all of Chicago, for appellees.

MURPHY, Justice.

This is a direct appeal from a decree entered in the circuit court of Cook county. Plaintiffs' second amended complaint was dismissed for failure to state a cause of action, and, plaintiffs electing to stand by their pleadings, the cause was dismissed at their costs. This appeal followed. Plaintiffs' complaint contained five counts. In the fifth they claimed an easement of indefinite duration across the property owned by a part of the defendants. Such claim involves a freehold which supports a direct appeal. Liberty National Bank v. Lux, 378 Ill. 329, 38 N.E.2d 6.

Plaintiffs owned a tract of land consisting of 3.1 acres, which is located in the packing house and industrial area at Thirty-ninth and Ashland streets, Chicago. In 1873, this tract, as a part of forty acres, was the subject of a partition. A plat was filed in that proceeding upon which the tract now owned by plaintiffs was designated as lot 5. The following is a sketch of the pertinent parts of the plat:

Image 1 (2.64" X 2.44") Available for Offline Print

The strip on the plat marked railroad right of way was, prior to 1890 and continuing to date in possession of defendants Chicago Junction Railway Company, The New York Central Railroad Company, The Chicago River & Indiana Railroad Company, or The Union Stock Yards & Transit Company. The several companies held in succession, but it is not necessary to identify their respective periods of ownership. Unless otherwise designated, the several companies will be referred to collectively as the railroad defendants. About 1890, plaintiffs' predecessors in title executed written leases with the railroad then using the right of way whereby lot 5 was leased for a period for a stipulated rental. The last lease so executed expired April 30, 1916, but the railroad company then in possession and its successors continued in possession to April 30, 1934. The railroad defendants kept and maintained switch tracks on a part of lot 5 and used it for railroad purposes. All of the switches and other property were removed from the lot at the time possession was surrendered April 30, 1934.

The Anglo-American Provision Company, the Friedman Manufacturing Company, and Mechanical Manufacturing Company were, at the time this suit was started, interested as owners, lessees, or otherwise in lots 6, 7 and 8. The pleadings do not identify the respective interests of these defendants in said lots. The several companies will be referred to as the industrial defendants. The switch tracks of the railroad defendants located on lot 5 were used by the railroad defendants in furnishing switching service to the plants of the industrialdefendants located on lots 6, 7 and 8.

The other defendants were William A. Hine and Frederick Hine. They owned lot 4. They had no right of possession or otherwise in lot 5, but from 1931-1934, they dumped vast amounts of refuse materials on plaintiffs' lot. It is alleged that it covered approximately two thirds of the lot and in places was more than 20 feet deep. At its inception this suit had as its primary object the enjoining of the Hines from committing further trespasses on lot 5. On June 15, 1934, a decree was entered which permanently enjoined them from the dumping of further refuse on the lot. It also contained a mandatory provision which directed that, by December 14, 1934, they remove all the substance deposited by them. No appeal was taken from such decree.

The record does not disclose when the suit was started nor the date the original and first amended complaints were filed. The second amended complaint was filed December 21, 1935. Plaintiffs' purpose, as disclosed by this latter pleading, was to recover damages for the dumping of the refuse on lot 5, for injunctional relief enjoining further trespasses and for other purposes as hereinafter noted. After plaintiffs filed a praecipe for record on appeal, defendants filed a praecipe for additional record. It appears from such additional record that the Hines did not remove the refuse within the time specified in the decree. By an order entered March 10, 1937, it appears that evidence was heard from which the court found that the Hines had removed ‘approximately all the debris' and had purged the contempt found by order of February 15, 1935. Evidently the refuse was on the lot when the second amended complaint was filed but plaintiffs did not make any amendments to meet the new condition created by the order finding it had approximately all been removed. The motions to dismiss were not filed until 1943 and the fact of removal of refuse was not properly pleaded by defendant, so consideration of the case must be limited to the facts pleaded in the second amended complaint and the motions to dismiss. Although the Hines were named as defendants, they did not appear to answer the charges in the complaint.

Plaintiffs' theory of the liability of defendants-appellees as stated in the first count was that both groups of defendants, railroad and industrial, were liable for the trespasses of the Hines. Plaintiffs claimed they would be forced to incur heavy expense in the removal of the refuse and in the procurement of a place to deposit it. The count contained an allegation that ‘all of the other of said defendants were in possession of said premises' (lot 5) during the Hines' trespasses. It was also alleged that the railroad defendants and the other defendants had full knowledge of the dumping of said materials on lot 5, and that the said defendants failed to exercise ordinary and reasonable care in the protection of plaintiffs' property, particularly with reference to such dumping, and that they failed to notify plaintiffs of the trespasses of the Hines. It is further stated ‘that for said wilful and wanton acts of the said defendants, William A. Hine and Frederick Hine, all of the defendants are liable to the plaintiffs.’ These allegations demonstrate that plaintiffs' theory of liability was that the railroad and industrial defendants were in possession of the lot when the trespasses were committed and that by reason of such possession a duty involved upon them to protect plaintiffs' property and to give plaintiffs notice of such unlawful acts. It is not necessary to go into the possibilities that the industrial defendants might be liable if they were in possession for it would be to assume something which the facts pleaded do not support. There are no facts stated to show the industrial defendants were in possession during the dumping of refuse by the Hines. The only reference is the general allegation ‘that all of the other of said defendants were in possession.’ Undoubtedly this was broad enough to include the industrial defendants, but other allegations of fact show they were not in possession, that their industrial plants were located on lots 6, 7 and 8, and that they had no interest in lot 5. Such an allegation is a conclusion of the pleader (Grove v. Templin, 320 Ill. 597, 151 N.E. 514) which the motion to strike does not admit to be true. The court was correct in holding that no cause of action was stated in count 1 against the industrial defendants.

The railroad defendants pleaded a different defense. The Union Stock Yard & Transit Company, The Chicago Junction Railway Company, and The New York Central Railroad Company joined in a motion in which they pleaded that the cause in count 1 was barred by a former judgment. The Chicago River & Indiana RailroadCompany filed a separate motion, in which the same defense was interposed. Such defense did not appear on the face of the pleading so that movants in each case supplied facts in support by attaching affidavits. The difference in the facts stated and the relationship of the respective movants make it necessary to consider the two motions separately.

Plaintiffs contend that the motions of the railroad defendants are, since they present facts, in effect answers which should have gone to a hearing of evidence. Each motion questioned the sufficiency of count 1 for defects appearing on the face. Each motion also pleaded a former judgment in bar. This did not appear on the face of the complaint, so defendants showed facts to support it by affidavit attached to the motion. Plaintiffs' attack on the motion is an attempted application of the rule which prevailed in equity prior to the effective date of the Civil Practice Act, that is, that the filing of a demurrer and answer to a bill at the same time was in effect an answer and that the answer waived the demurrer. They also contend that a defect which appears on the face of the pleading cannot be included in a motion with a defense which does not appear on the face.

Defendants' motions were filed pursuant to section 48 of the Civil Practice Act. Ill.Rev.Stat.1945, chap. 110, par. 172. Section 48 is supplementary to section 45 and amplifies it. Section 48 was patterned from the New York Rules of Civil Practice. The section is explicit in that it authorizes raising questions by motion under two different situations. Defects which appear on the face of the opposite party's...