Ohio & M.R. Co. v. Russell

• Citation: 115 Ill. 52,3 N.E. 561
• Court: Illinois Supreme Court
• Decision Date: 14 November 1885
• Parties: OHIO & M. R. Co. v. RUSSELL.

115 Ill. 52

3 N.E. 561

OHIO & M. R. Co.

v.RUSSELL.¹

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from appellate court Third district.

MULKEY, C. J., and SCHOLFIELD, J., dissent.

Pollard & Phillips, for appellant.

Oscar A. De Leuw and W. P. Callon, for appellee.

SCOTT, J.

This action was brought by George Russell against the Ohio & Mississippi Railroad Company, to recover double the value of a fence which it is alleged plaintiff built on the right of way of the defendant corporation. In the declaration the facts are averred, with sufficient fullness, on which plaintiff bases his right to recover, from which it appears defendant was possessed of and was operating a railroad through the county of Cass, and that it was the duty of such defendant, under the statute, to build a fence on its right of way next adjoining plaintiff's land; that, on failing to build such fence as the law requires, plaintiff caused a notice to be served on defendant that unless it conformed to the statute, and built such fence within 30 days, plaintiff would proceed, as he is authorized by statute in such cases to do, to build the fence and hold defendant liable for double the value; and that, on defendant's failure to build such fence, plaintiff did build it, and now by his action seeks to recover double the actual cost of constructing the same. To the declaration alleging these and other facts defendant pleaded- First, the general issue; and, second, a special plea, in which it is averred that, at and before the time of building the fence as in the declaration stated, the railroad, and all the property of defendant, was in the hands of a receiver appointed by a district court of the United States, in pursuance of an order of that court authorizing such receiver to take possession and operate such railroad, and enjoining and restraining the company, its officers and employes, from in any manner interfering with the possession of the receiver, or with the management or the operation of the railroad property. To this special plea the court sustained a demurrer, and defendant elected to stand by its plea. A trial was had before the court, without the intervention of a jury, on the plea of the general issue, which resulted in rendering a judgment against defendant for double the value of the fence built by plaintiff. That judgment was affirmed in the appellate court of the Third district, and defendant brings the case to this court on his further appeal.

The decision of the court in sustaining the demurrer to the special plea raises the principal question in the case. Conceding the correctness of that decision, it would follow the ruling of the court excluding as evidence the orders of the United States court appointing the receiver was also correct. Both decisions will therefore be examined together as one question. Section 1 of the act of 1874 makes it the duty of every railroad corporation, within a certain time after its line is open for use, to erect and thereafter maintain fences on both sides of its road, suitable and sufficient to keep stock from getting on the track. Section 3 of the same act declares whenever any railroad corporation shall neglect or refuse to build such fence in accordance with the provisions of the act, the owner or occupant of the land adjoining the railroad may give notice to such corporation to build such fence within a time specified. The notice authorized to be given may be served on the corporation or the lessee or the persons operating such railroad. By the fourth section it is provided if the parties so notified shall refuse to build such fence, the owner or occupant of the land required to be fenced may build the fence, and the person so building such fence shall be entitled to double the value thereof from such corporation or party actually occupying or using such railroad. It will be perceived, on a close reading of the statute, the person constructing the fence, under its provision, may bring his action either against the corporation or the party actually occupying or using such railroad, at his election. Either one is liable to the penalty imposed by the statute. It is therefore no defense, so far as the corporation is concerned, that the property of the corporation is in the hands of the receiver, or that its road is occupied or used by another party. The statute has expressly given the remedy against either party, and the party aggrieved may bring his action against one or the other, as he deems most expedient. Under this construction of the statute, it is obvious the demurrer to the special plea was properly sustained.

Counsel have cited a line of authorities that hold while...