Northern Ill. Coal Corp. v. Langmeyer

• Citation: 342 Ill.App. 406,96 N.E.2d 820
• Decision Date: 31 January 1951
• Docket Number: Gen. No. 50-0-18
• Parties: NORTHERN ILLINOIS COAL CORP. et al. v. LANGMEYER, Highway Commissioner.
• Court: United States Appellate Court of Illinois

Page 820

96 N.E.2d 820

342 Ill.App. 406

NORTHERN ILLINOIS COAL CORP. et al. v. LANGMEYER, Highway Commissioner.

Gen. No. 50-0-18.

Appellate Court of Illinois, Fourth District.

Jan. 31, 1951.

F. E. Merrills, Belleville, for appellant.

Dan McGlynn and Kramer, Campbell, Costello & Wiechert, all of East St. Louis, and Kirkland, Fleming, Green, Martin & Ellis, Chicago (Root & Hoffman, Morris, of counsel), for appellee.

BARDENS, Justice.

This case has been before us previously on a question regarding a temporary injunction and our opinion in that instance set forth the allegations of the complaint rather thoroughly and they will not be repeated here. See 340 Ill.App. 423, 92 N.E.2d 802. To the complaint the defendant filed answer and the cause came on for hearing before the court. At the termination of the hearing the court issued a permanent injunction against defendant, restraining him from interfering with the operations of the plaintiff. From this decree the defendant highway commissioner has brought the appeal to this court.

Plaintiff, Northern Illinois Coal Corporation, is the owner of certain property in said township and plaintiff, Seminole Coal Corporation, is now engaged in strip mining operations on said property under an agreement between it and the Northern Illinois Coal Corporation, Seminole Coal Corporation being a wholly owned subsidiary of the Northern Illinois Coal Corporation. Said two corporations are hereinafter referred to as 'plaintiffs.'

The evidence in the case shows that the said township of Lenzburg, which is located in St. Clair County, has two township roads intersecting at a point adjoining property owned by the plaintiffs. These roads are designated as the 'Golden Rule Road' which runs east and west and the 'Dutch Hill Road' which runs north and south. Plaintiffs own land south and east of the intersection of the two highways, south and west of said intersection, and north and west of said intersection. For some time prior to the institution of this suit plaintiffs were mining the land south and east of the said intersection and in connection with the mining operations thereon they had constructed on that land at a cost in excess of one million dollars an office building, tipple, washing and preparation plant, railroad siding, repair shops, and other facilities necessary to the mining and production of coal. Plaintiffs determined in the conduct of their business that it was feasible to commence mining operations on the property north and west of the road intersection, and determined that it was necessary in such mining operations to build a haulage road across the 'Golden Rule Road' west of the intersection and across the 'Dutch Hill Road' south of the intersection in order to haul coal from the northwest quadrant to the tipple, washing and preparation plant, and other facilities now located in the southeast quadrant. In order to do this it was necessary to move certain heavy drag line machinery to the northwest quadrant and thereafter to haul coal from the northwest quadrant by truck to the plant in the southeast quadrant. The plaintiffs own the fee in and to said highways adjoining their land. Said highways are township highways over which the public has an easement for right of way purposes.

The decree makes findings substantially as above and recites that the plaintiffs, under the authority of the temporary injunction, had moved the heavy machinery across the roads and had constructed a haulage road and had laid subterranean electric cables under and across the said roads. The court also found that the said haulage road as constructed and the subterranean cables as laid do not constitute obstructions to the highway; that the plaintiffs maintain a watchman at the place where the haulage road crosses the township roads and that said watchman directs the truck traffic of the plaintiffs in such a manner as to give the right of way to all persons and vehicles traveling upon the township roads; that plaintiffs do not interfere in any manner with the public's use of its road easements; and that unless plaintiffs are so permitted to cross over the said township roads they will suffer irreparable damage for which plaintiffs would have no adequate remedy at law and that defendant is unable to respond in damages. The decree then restrains the defendant or anyone acting under and through him from preventing, obstructing, or interfering with the plaintiffs in their use and maintenance of the haulage road, but the decree provides that the plaintiffs shall continue to maintain said haulage road as now constructed and shall continue to provide watchmen at the points where the haulage road crosses the township roads and continue to give the right of way to all persons and vehicles traveling upon the township roads.

The proof shows, and it is conceded by plaintiffs, that the trucks exceed the weight limitations as set out in Article XVI of the 'Uniform Act Regulating Traffic On Highways', being Paragraphs 124 to 135, inclusive, of said act, Sections 221 to 232, inclusive, of Chapter 95 1/2, Illinois Revised Statutes, 1949. The defendant highway commissioner contends that in as much as the sections of the statute pertaining to maximum weight limitations are violated the plaintiffs should not be allowed to continue their mining operations in violation of the statute without obtaining a permit from him as the 'Local Authority.'

It appears from the evidence and the decree of the court below that the movement of the heavy machinery was effected under the protection of the temporary injunction and the only question before us now is the movement of the trucks over said haulage road for the purpose of carrying coal from the place where it is mined to the facilities in the southeast quadrant.

In his brief and argument the defendant states that he is simply relying upon the provisions of the act above referred to. The pertinent provisions of said act are as follows: $Paragraph 124 of said act provides: 'It is unlawful for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or vehicles of a size or weight exceeding the limitations stated in this article * * *.'

Paragraph 131(a) of the act provides: 'No vehicle or combination of vehicles equipped with pneumatic tires shall be operated * * * upon the highways of this State when the gross weight on the road surface through any axle thereof exceeds 16,000 pounds; * * *.' (Italics ours.) Then follow the various maximum weight provisions of the various classes of vehicles.

Paragraph 133(a) of the act provides: 'The Department with respect to highways under its jurisdiction and local authorities with respect to highways under their jurisdiction may, in their discretion, upon application in writing or by telegram and good cause being shown therefor, issue a special permit in writing or by telegram if a written permit is issued the same day authorizing the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in this Act or otherwise not in...