Rock Island & P. Ry. Co. v. Dimick

• Decision Date: 31 October 1892
• Court: Illinois Supreme Court
• Parties: ROCK ISLAND & P. RY. CO. v. DIMICK.

144 Ill. 628

32 N.E. 291

ROCK ISLAND & P. RY. CO.

v.DIMICK.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from circuit court, Henry county; JOHN J. GLENN, Judge.

Bill for injunction by Laertes F. Dimick against the Rock Island & Peoria Railway Company. Complainant obtained a decree. Defendant appeals. Affirmed.Henry Curtis, for appellant.

J. P. Hand, for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

This was a bill by the appellee in the circuit court of Henry county against appellant to enjoin the closing of two cattle ways under appellant's railroad, upon appellee's farm. Appellee, being the owner of an 80-acre tract of land and 57-acre tract adjoining, July 20, 1870, made a deed to the Peoria & Rock Island Railroad Company, conveying a right of way for its road across the 80-acre tract for the expressed consideration of $300, which was recorded. It is alleged in the bill the real consideration for said deed was $300 in money, and the written agreement of the grantee to forever maintain and keep open, at its own expense, two passageways for stock under its road through appellee's farm. The railroad embankment was built across appellee's land, and the two ways under it left open, before the deed was executed. The road cut the farm triangularly, leaving a considerable portion on either side of it. The contract was not recorded, and before bill filed had been destroyed by fire. Appellant acquired title to the railroad under foreclosure and mortgage executed by the Peoria & Rock Island Railroad Company in October, 1877, went in to possession, and has since operated it. Both passageways were left open, without interference therewith, except as hereinafter stated, until about the time of filing the bill, when appellant was about to fill in and close the south passageway. In 1889 (June 29th) appellant, then having operated the road over 11 years, asked permission of appellee to fill up part of the passageway, most northerly, and an agreement in writing was entered into, by which the right was granted to appellant to fill up all but eight feet thereof, which it covenanted to keep open and maintain as a cattle way for appellee during the continued occupation, etc., of the road. In said agreement in writing last mentioned it was alleged and shown that a mistake was made in the description of the tract of land, and the bill prays, among other things, for its reformation. The answer, admitting appellee's ownership of the land, the construction of the railway, the making of deed for right of way, denies the making of said first-mentioned agreement, and admits that, when the railroad was first built, openings in its embankments were left, but denies they were so left by virtue of any contract with appellee, but, on the contrary, it is alleged the embankments were so built that openings were left at sloughs and natural depressions, to allow the surface water to pass through under its track in the usual manner, to allow drainage, and for no other reason or cause whatever; admits its corporate existence, and that it succeeded, by purchase, etc., to all the rights, franchise, and property of the Peoria & Rock Island Railroad Company, and avers that said purchase was made in good faith, and for value, without notice of the equities now set up by appellee, etc.; admits that it closed up, by consent of appellee, the north opening, except eight feet thereof, and is about to close up the southerly opening entirely, etc. Replication was filed, and, on hearing, the injunction was made perpetual, and the railroad company appeals.

SHOPE, J., ( after stating the facts.)

In 1870 appellee executed his deed to the Peoria & Rock Island Railroad Company, conveying a right of way for its railroad across his lands for the expressed consideration of $300. At the time of the execution of the deed the railroad had been graded through appellee's land, and two openings left in the embankment for said road, built on said land. The one designated the ‘north passageway’ was at a slough, and was 50 to 60 feet long, and which would be spanned with a bridge or trestle work. Practically 1,000 feet south of that one was another opening, near the south line of appellee's land, 10 or 12 feet wide, over which a bridge was to be constructed. It is alleged in the bill that, as part consideration for the conveyance of the right of way, the grantee agreed with appellee to keep open and perpetually maintain said two openings under its track as passageways for the passage of appellee's stock to and from his lands lying on each side of the right of way granted in and by said deed of conveyance; that said agreement was, cotemporaneously with the execution of the deed, reduced to writing, and duly executed and delivered to appellee, but has since been destroyed, etc., without having been recorded. The answer denies these allegations, and avers that the $300 admitted to have been paid was the sole consideration for said deed.

No good purpose will be served by discussion of the evidence. It leaves no doubt whatever that an agreement in writing was executed for and on behalf of said railroad company, and delivered to appellee, relating to the maintenance of a passageway or passageways under the railroad track through appellee's farm, for the accommodation of the farm in the passage of stock from one side of the railroad to the other, or that such written agreement was made and delivered to appellee cotemporaneously with and as part of the transaction of making and delivering the deed. This is abundantly shown by the testimony of Mr. Page, who was at the time a director and attorney of the railroad, and who wrote the agreement at Dimick's house, executed it, and took at the same time the acknowledgment of the deed, as well as by that of Dimick and other witnesses. There is, however, some difficulty as to the terms of the written agreement, but not in respect of any matter affecting the substantial merits of this controversy. Mr. Page's recollection is that the contract was to apply to one passageway only,-that is, that the railroad company was to maintain ‘a passageway,’ not two passageways; but says he is not certain,-may be mistaken; and that appellee carefully read the contract in his presence, and would be fully as likely to remember the real fact. Appellee testifies that the contract related to the maintenance of the two passageways then open through the railroad embankment on his farm, and the contract provided for their perpetual maintenance by the railroad company. But, if the recollection of Mr. Page be conceded to be correct, it clearly appears from his testimony that the opening contracted for was the south opening, which is the principal subject of controversy in this case. He says, (quoting from the abstract:) ‘When the road was constructed there were two passage ways left under the track, through which stock could pass and repass,-one, at what was called the ‘Slough,’ and the other further south. The north passage was located in a slough. The south opening is the principal opening contracted for. He was to have such an opening that stock could pass and repass at all times. The north opening would not answer at all times on account of the slough.' He also says the construction of the south opening was as provided for in the contract. The testimony of Mr. Gould, another director of the railroad company at the time, although relating largely to information derived by him from Mr. Page in the course of the business of the construction, etc., of the road, and in consultations between them during the negotiations for the right of way over appellee's land, is strongly corroborative of the contention of appellee. He says, (again quoting from the abstract:) ‘Had conversation with Dimick during the time was surveying and grading the road. Dimick complained the road would interfere with his feeding lots. It was compromised by giving him a raceway or driveway under the railroad at the first draw north of the public road. Dimick wanted some contract in writing, or put in the deed. Page and I consulted, and came to the conclusion it ought to be done. Page reported to me he had got a deed for the right of way with that * * * agreement with Mr. Dimick. It was conceded there would be a bridge at the big slough, consequently an opening, with not much danger of being filled up. It was calculated that it would remain as a crossing, so Page and I didn't have much talk about that. When road was graded, the south crossing was left open for the passage of cattle.’ He says that Dimick was very much dissatisfied, and the engineer suggested giving him a ‘passageway under the road that would not injure him in regard to his cattle, and he [Dimick] finally consented, with that understanding.’ The ‘south crossing,’ as this witness terms it, is the passageway under the track which appellant now proposes to fill up, and is practically ‘at the first draw north of the public road.’ It is evident from the testimony of all these witnesses that the opening at the slough was not made by the railroad company as a...