Mitchell v. Illinois Cent. R. Co.

• Decision Date: 24 February 1943
• Docket Number: Gen. No. 9356.
• Citation: 317 Ill.App. 501,47 N.E.2d 115
• Parties: MITCHELL v. ILLINOIS CENT. R. CO. ET AL.
• Court: United States Appellate Court of Illinois

317 Ill.App. 501

47 N.E.2d 115

MITCHELL

v.ILLINOIS CENT. R. CO. ET AL.

Gen. No. 9356.

Appellate Court of Illinois, Third District.

Feb. 24, 1943.

Appeal from Circuit Court, Mason County; Maurice E. Barnes, Judge.

Suit by Forster I. Mitchell against Illinois Central Railroad Company and W. E. Beach, doing business as Illinois Independent Oil Company, to enjoin use of portion of railroad right of way as a retail drivein gasoline filling station and for other relief. From a decree for defendants, complainant appeals.

Reversed and remanded with directions.F. I. Mitchell and Velde & Coppell, all of Havana, for appellant.

Graham & Graham, of Springfield, Epler C. Mills, of Virginia, and Kenneth H. Lemmer, of Havana (Vernon W. Foster, Charles A. Helsell, and John W. Freels, all of Chicago, of counsel), for appellees.

DADY, Justice.

This is an appeal by Forster I. Mitchell from a final decree of the circuit court of Mason County, dismissing for want of equity a complaint by which Mitchell sought to have the Illinois Central Railroad Company and W. E. Beach enjoined from using or permitting to be used as a retail drive-in filling station a certain portion of the right-of-way of the railroad company located in the City of Havana, Illinois. The complaint also prayed that the defendants be required to remove the gasoline tanks and retail filling station located thereon.

After the case was at issue it was referred to a master in chancery, who took the proofs and filed his report recommending the complaint be dismissed for want of equity. The chancellor overruled exceptions to the report and entered the decree appealed from.

There is no material dispute on the facts.

Mitchell has a fee simple title to the premises, having acquired such title on January 4, 1940. His title is subject to the rights of the railroad company herein referred to.

The rights of the railroad company are based, as assignee, on a deed from one Ross and wife, dated November 25, 1879, by which Ross and wife, as the owners in fee, conveyed a strip of land 100 feet in width to the Champaign, Havana and Western Railway Company, its successors and assigns, “for the purpose of constructing, maintaining and operating thereon a single or double track railway, with all the necessary appurtenances, * * *.” From the delivery of such deed in 1879 until the delivery of the Beach lease herein referred to the premises in question were used for no purpose other than railroad purposes.

Beach, doing business as Illinois Independent Oil Company, operates eleven bulk and nineteen retail drive-in gasoline stations in central Illinois. Prior to the lease in question he had and has in Havana one bulk station of 70,000 gallons capacity, located on the right-of-way of the railroad company and a few city blocks distant from the station in question. He operates two retail drive-in stations in the City of Havana, besides the one in question. Beach is one of the large shippers of petroleum products using the defendant railroad in this area.

On March 14, 1940, by written lease, the railroad company leased the real estate involved in this suit, consisting of about 5040 square feet of such right-of-way, to Beach, for the period beginning March 14, 1940, and ending March 14, 1945, for the rental of $50 per annum. The lease provided that the premises were to be used and occupied exclusively as a site for a “combination bulk oil and filling station,” and that the lessor might terminate the lease and the tenancy thereby created at any time by giving the lessee sixty days' notice of such intention. The lease was duly approved by the Commerce Commission of this State. Mitchell had nothing to do with the making or the approval of the lease.

There are several other retail filling drive-in stations in the immediate vicinity, one of them owned by Mitchell which is located about 250 feet distant from the premises in question.

About March 15, 1940, Beach entered into possession of the premises so leased to him and thereafter constructed thereon a filling station, installing thereon two 2,000 gallon underground gasoline tanks. Thereafter Beach sold from this station, at retail and to the general public, gasoline, oil and similar products. At such station Beach proposes to install two additional underground tanks, one of 2,000 gallons and one of 6,000 gallons capacity.

Practically all gasoline handled at such station is delivered direct to the storage tanks from tank cars on the railroad, although Beach is not bound under any contract with the railroad to use tank cars in bringing gasoline to his station. Beach testified that he expects such station will use, when in full operation, about twelve 8,000-gallon tank cars of gasoline per year. The freight rate is from $200 to $225 per car for shipment from Oklahoma, $90 per car from East St. Louis and $40 per car from Southern Illinois. Most of Beach's shipments are from Oklahoma. Oil and other supplies are delivered to the station by truck.

Two principal questions are involved: (1) Whether the railroad company had the right to rent and Beach, as lessee, had the right to use the premises as a retail drive-in filling station; (2) whether relief can be had by Mitchell by way of injunction.

Beach, of course, has no greater rights than his lessor could give him.

It is not contended that by virtue of the Ross deed the grantees therein acquired or the present railroad company has any greater rights than an easement for railroad purposes. Tallman v. Eastern I. & P. Ry. Co., 379 Ill. 441, 41 N.E.2d 537. While an easement of this nature possesses most of the qualities of a fee title and confers upon the railroad the right of exclusive possession (Illinois C. R. Co. v. Houghton et al., 126 Ill. 233, 18 N.E. 301,1 L.R.A. 213,9 Am.St.Rep. 581), there still exists the limitation that the property subject to the easement must be used for railroad purposes. Illinois C. R. Co. v. City of Chicago, 141 Ill. 509, 30 N.E. 1036. The general rule appears to be that a railroad may use its right-of-way over property acquired by way of easement for any purpose that is reasonably necessary or convenient to the maintenance and operation of the railroad. Illinois C. R. Co. v. Wathen, 17 Ill.App. 582.

Defendants have cited a number of cases from other jurisdictions, most of which are collected in a note in 36 L.R.A.,N.S., 512, in which it has been held proper for a railroad to use or lease portions of its right-of-way for such purposes as the erection of coal yards and sheds, grain elevators, warehouses, corn cribs, lumber yards, stock yards, and a hotel for railroad employees and the general public. A careful reading of these cases will show that in each case the use permitted was directly connected with the business of the railroad itself. In most of the cases cited the particular structure or building was erected for the convenience of shippers in the storage of merchandise and materials shipped or to be shipped over the railroad. We do not regard these cases applicable to the particular facts in the case before us.

The Illinois case principally relied upon by the defendants is Illinois C. R. Co. v. Wathen, 17 Ill.App. 582, which case has been cited with approval many times by courts of other jurisdictions but has not, insofar as we know, been cited in any opinion of an Illinois court of review. In the Wathen case the court held that the defendant railroad companies had the right, without the payment of rent, to permit the erection and use of elevators, corn cribs, lumber yards and lime houses on portions of the railroad right-of-way. In so holding the court said: “One of the leading branches of the business of railroads is that of carrying freight. In order that it may carry on this...