Springfield & N.E. Traction Co. v. Warrick

• Decision Date: 19 April 1911
• Citation: 249 Ill. 470,94 N.E. 933
• Court: Illinois Supreme Court
• Parties: SPRINGFIELD & N. E. TRACTION CO. v. WARRICK et al.

249 Ill. 470

94 N.E. 933

SPRINGFIELD & N. E. TRACTION CO.

v.WARRICK et al.

Supreme Court of Illinois.

April 19, 1911.

Appeal from Circuit Court, Logan County; T. M. Harris, Judge.

Bill by the Springfield & Northeastern Traction Company against Elizabeth Warrick and others. Decree for complainant, and defendants appeal. Affirmed.Blinn & Covey and Baldwin & Stringer, for appellants.

King & Miller, for appellee.

CARTER, J.

This is a bill in chancery filed by appellee in the circuit court of Logan county to enjoin the prosecution of an ejectment suit and the forfeiture of a certain deed by appellants. After the issues were joined, the case was referred to a special master in chancery to take testimony, but not to report his conclusions as to the law and facts. A hearing was thereafter had upon this testimony and certain other testimony taken later before a special master, and a decree was entered granting the relief prayed for in the bill and finding that appellants should pay the costs. This appeal was thereupon prosecuted.

September 30, 1904, appellants conveyed to the Springfield, Lincoln, Bloomington, Pekin & Peoria Railroad Company, predecessor in title of appellee, a strip of land off the west side of their farm parallel to and adjacent to the right of way of the Chicago & Alton Railroad Company, containing about five acres, and being a little over one mile in length. The deed recites that it is made in consideration of the payment of $1,053.75, ‘and the further consideration of the covenants and agreements in this deed contained, * * * and the further consideration that said grantee shall build and forever maintain a fence upon the east side of said strip of land sufficient to turn all kinds of stock, said fence to be built by the said second party before it enters upon said described premises to commence its construction work, and shall furnish and construct a suitable and safe grade crossing over and across said right of way, with proper bridges thereto, and forever maintain the same, at a point opposite or near the present grade crossing of the Chicago & Alton Railroad Company adjacent to said described premises, the exact point for the location of said crossing to be designated by the grantors before or during the progress of the construction of the grantee's grade and track over and upon said premises,’ and in further consideration that under certain conditions the grantee would build a side track to haul grain and produce and also would maintain a stopping point for passengers. ‘And in case said grantee shall fail to construct, build and continuously operate said proposed railway as to one track within two years from Springfield to Lincoln, or shall fail to keep and perform any of the terms and conditions imposed in this deed as therein provided, which are hereby made a part of the consideration thereof, then the strip or piece of land herein conveyed shall revert back and become the property of the grantors without the repayment of the sum of money above mentioned, which shall be retained by the grantors.’ The road was not completed or electric cars put in operation between Lincoln and Springfield until December, 1906. Appellants served appellee with written notice of forfeiture on account of the failure to construct, complete, and continuously operate the road within the time provided in the deed and demanded immediate possession of the premises on November 14, 1906, and again on December 14th of the same year. This demand not being complied with, appellants, at the May term, 1907, of the Logan county circuit court, brought suit in ejectment to recover the land described in the deed, averring that the deed had been forfeited by reason of failure to comply with its provisions. This bill was thereupon filed to enjoin the prosecution of that suit and the forfeiture of the deed.

The proof shows that the chief part of the work of the construction of the road had been completed prior to September 30, 1906, and construction cars were running on that section between Lincoln and Apringfield by steam power; the overhead work not yet being completed. It further shows that the delay in the completion of the work was caused partly, if not entirely, as a result of the failure to procure material for overhead construction; that this material was ordered in ample time, but it was delayed to some extent by scarcity of material on the market, though principally by delay in transportation, for which neither appellee nor its agents were in any way responsible. The decree finds, and the weight of the evidence supports the finding, that the original company, the grantee in the deed, during the years 1904, 1905, and 1906 made substantial efforts, in good faith, to build the road within the time mentioned in the deed; that it met with financial embarrassments and unavoidable delays and disappointments in borrowing money, and transferred its property and rights to appellee for the purpose of having the road completed within the time required; that the total cost of the work done by appellee between October 1, 1906, and the first notice of the forfeiture, between Lincoln and Springfield, was approximately $50,000; and that as soon as the rails were laid on the land here in dispute a suitable and safe farm crossing, with approaches thereto, was constructed for appellant. The construction of the road was not completed until some two months after September 30, 1906. From this record there can be little doubt that it would have been completed within the time agreed but for various delays not due to the negligence or fault of appellee or its agents in charge of the work of construction.

[1] Appellants contend that the time fixed in the deed was intended to be, and was, of the essence of the contract, and that to entitle appellee to be relieved from the forfeiture it must be shown the failure to complete the work was the result of fraud, accident, or mistake. Appellants speak of the provisions of the deed as covenants. We are disposed to hold that the estate created by the conveyance was upon a condition subsequent, and the appellants must have so regarded it when they declared a forfeiture and brought the ejectment suit.

[2] If the conditions in the deed were covenants, it would not have entitled them to a re-entry upon the land; but they would have had a right of action for damages for a breach of covenants. Post v. Weil, 115 N. Y. 361, 22 N. E. 145,5 L. R. A. 422, and note, 12 Am. St. Rep. 809; 2 Elliott on Railroads, § 945; 6 Am. & Eng. Ency. of Law (2d Ed.) 503. Forfeitures will be enforced by courts in clear cases, but they are not regarded with favor, and their prevention is within the protecting care of equity whenever wrong or injustice will result from their enforcement. Palmer v. Ford, 70 Ill. 369;Mott v. Danville Seminary, 129 Ill. 403, 21 N. E. 927;Voris v. Renshaw, 49 Ill. 425;Zempel v. Hughes, 235 Ill. 424, 85 N. E. 641.

[3] It must be conceded that all of the conditions in the deed were not strictly complied with in the time stipulated; but it does not follow that the forfeiture must be sustained. Appellants stood by and permitted appellee to take possession of the ground and expend a large sum of money in grading and construction. The proof tends to show that the work between Springfield and Lincoln cost approximately $1,000,000, and that by far the greater portion of this money had been expended, and the work, except overhead construction, substantially completed, prior to September 30, 1906. Under such circumstances it would be a great wrong and injustice to appellee to enforce a forfeiture of the deed. St. Louis & Belleville Electric Railway Co. v. Van Hoorebeke, 191 Ill. 633, 61 N. E. 326;North Jersey Street Railway Co. v. Inhabitants of South Orange, 43 Atl. 53; 1 Pomeroy's Eq. Jur. 451. It is apparent from the provisions of the deed that the intention of both parties was that the land should be used for the construction and operation of the road between Lincoln and Springfield, and that, to secure its use for that purpose and prevent its being diverted to any other or held without being used, it was provided that the road should be completed and in operation within two years. The failure to have it in operation until a few months later is not shown to have resulted in special hardship to appellants. The decree rightly found that the deed should not be forfeited and that the prosecution of the ejectment suit should be enjoined.

[7] Appellants set up in their answer that they were damaged because the fence was not built and the farm crossing constructed in accordance with the deed. Appellee insists that such damages cannot be allowed in this proceeding: First, because the claim should have been presented by a cross-bill and not by answer; and, second, because the forfeiture upon which the action in ejectment was based was declared solely on the ground of a failure to operate the road within two years and not because of failure to build the fence and crossing and provide proper drainage. The chancellor admitted evidence on this question under the pleadings; but the decree found that no damages had been proven by reason of the failure to construct and maintain the fence or crossing or from obstructing the flow of the surface water from the adjacent lands of appellants.

[4] In equity the harsh remedy of forfeiture yields to compensation when fair dealing and good conscience seem to require...