Marion & E.R. Co. v. Missouri Pacific R. Co.

• Decision Date: 03 December 1925
• Docket Number: No. 16688.,16688.
• Citation: 149 N.E. 492,318 Ill. 436
• Court: Illinois Supreme Court
• Parties: MARION & E. R. CO. v. MISSOURI PAC. R. CO. et al.

318 Ill. 436

149 N.E. 492

MARION & E. R. CO.

v.MISSOURI PAC. R. CO. et al.

No. 16688.

Supreme Court of Illinois.

Oct. 28, 1925.

Rehearing Denied Dec. 3, 1925.

Bill for injunction by the Marion & Eastern Railroad Company against the Missouri Pacific Railroad Company and others. From a decree dissolving the temporary injunction and dismissing the bill, plaintiff appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Williamson County; R. R. Fowler, judge.

Alfred G. Hagerty, of St. Paul, Minn., for appellant.

White & Colp, of Marion, and Whitnel & Browning, of East St. Louis (Edward J. White, of St. Louis, Mo., of counsel), for appellees.

DE YOUNG, J.

The Marion & Eastern Railroad Company on February 14, 1925, filed its bill for an injunction in the circuit court of Williamson county against the Missouri Pacific Railroad Company, James E. Finucane, and the West Virginia Coal Company. The complainant alleges in its bill that it is an Illinois corporation, owning and operating a railroad approximately 11 1/2 miles in length, extending from Paulton to Marion, in Williamson county; that its railroad is connected in the vicinity of Marion with the Illinois Central Railroad, the Chicago & Eastern Illinois Railroad, and the Missouri Pacific Railroad; that these railroads extend into and through many of the United States, and that complainant's railroad with these three railroads, including others connecting therewith form through routes, are engaged in the interstate transportation of persons and property, maintain joint rates, and are jointly and severally amenable to the provisions of the Interstate Commerce Act. The bill then sets forth that Finucane has establisheda construction camp near Scranton Station, adjacent to complainant's railroad; that the Missouri Pacific Railroad Company, by Finucane, is about to begin the construction of an extension of its railroad in a southeasterly direction to and across complainant's railroad in the vicinity of Scranton Station and thence onward to a point near the town of Crab Orchard; that no notice of the object and purpose of the Missouri Pacific Railroad Company to make the proposed extension has been given to the public, either by publication for three consecutive weeks in a newspaper of general circulation in Williamson county, or by notice to the Governor of the state, as required by the Interstate Commerce Act; that the requisite certificate of public convenience and necessity has not been issued, and that in consequence the construction of the extension will be unlawful per se. The bill further charges that adequate through routes to all points are efficiently maintained and operated through Marion from the coal fields which the Missouri Pacific Railroad Company is attempting to reach; that the purpose of that railroad company in extending its line is to close the transportation gateway through Marion, and either to absorb complainant's railroad or wholly to destroy it as a transportation facility; that if the extension should be built complainant will immediately suffer irreparable damage, because it will no longer receive coal for transportation over the established through routes; that public convenience and necessity do not require the contemplated extension; and that as a party in interest, within the meaning of the Interstate Commerce Act, complainant has the right to enjoin the construction of the proposed extension. The prayer of the bill is that the defendants be restrained from constructing the extension until they obtain authority, in the form of a certificate of public convenience and necessity, therefor. To the bill is appended an affidavit by the president of the complainant that the matters set forth in the bill are true to the best of his knowledge and belief.

A temporary injunction was granted upon the filing of the bill. On February 20, 1925, the Missouri Pacific Railroad Company moved to dismiss the bill and to vacate the order. The motion was denied. The defendant railroad company then answered the bill. It avers in its answer that the proposed extension will constitute a spur or industrial track 5,890 feet in length to run from an existing spur on its line serving the West Virginia Coal Company's mine to a new shaft of the same company which is under construction; that no spur, industrial, or other railroad track now serves the new mine shaft; that the only traffic which will move over the proposed track will be coal and supplies to and from the new shaft of the coal company, and that no other shipper will be served thereby; that no regular, continuous train movements will be made over or passenger trains operated on the track; that no line-haul rates will be established or charged for traffic thereon; that no station, either for the accommodation of freight or passengers, will be built on the proposed extension; that the use of the new track will require no billing of freight to and from the mine other than that made at Bush Station; that this station is the Terminal point on the Missouri Pacific Railroad at which the West Virginia Coal Company's shipments will originate and be billed for road-haul movements by through continuous transportation service, and that the spur will be used solely for loading, unloading, switching, and other purposes connected with and incident to such service. The answer denied that by the Interstate Commerce Act or any other law the Missouri Pacific Railroad Company is required to give notice of the construction of the proposed track, or that the track, if constructed, will cause irreparable damage to the complainant. It denies that the new shaft of the coal company is served by complainant or any other railroad and it denies that for the purpose of constructing and operating the track a certificate of public convenience and necessity or other express authority is required.The answer is verified by the superintendent of the railroad company. A replication to the answer was filed. The other defendants, James E. Finucane and the West Virginia Coal Company, by their answers adopted the answer of the Missouri Pacific Railroad Company.

After the filing of the answers, on February 20, 1925, the motion to dismiss the bill was renewed, and was again denied. A hearing followed, at which only the complainant offered evidence. Its president testified that the Marion & Eastern Railroad extends from Marion in a northeasterly direction through the east half of Williamson county. It was built for the purpose of developing that part of the county and giving it railroad service. Connections are made with trunk lines at Marion. Complainant in 1922 laid a switch track near the point where the shaft of the West Virginia Coal Company was to be sunk. The ties, rails, and other material for the mine track were delivered on the ground. The West Virginia Coal Company then directed complainant not to proceed with the construction of the mine track because the coal company would not at that time sink the shaft, and nothing further was done. The proposed track of the Missouri Pacific Railroad will reach complainant's railroad near milepost No. 2, in the vicinity of Scranton Station. There are no coal mines at that point. A shaft is about to be sunk approximately 700 feet west of complainant's track, or about 200 feet from the...