State Pub. Utilities Comm'n ex rel. Cameron v. Lake Erie & W.R. Co.

• Decision Date: 04 April 1917
• Docket Number: No. 10972.,10972.
• Citation: 115 N.E. 519,277 Ill. 574
• Court: Illinois Supreme Court
• Parties: STATE PUBLIC UTILITIES COMMISSION ex rel. CAMERON v. LAKE ERIE & W. R. CO.

277 Ill. 574

115 N.E. 519

STATE PUBLIC UTILITIES COMMISSION ex rel. CAMERON

v.LAKE ERIE & W. R. CO.

No. 10972.

Supreme Court of Illinois.

Feb. 21, 1917.

Rehearing Denied April 4, 1917.

Appeal from Circuit Court, Sangamon County; James A. Creighton, Judge.

Petition to the State Public Utilities Commission by J. S. Cameron against the Lake Erie & Western Railroad Company. From order in petitioner's favor, defendant appealed to circuit court of Sangamon county, where, upon hearing, order was affirmed, and defendant appeals. Affirmed.

George B. Gillespie, of Springfield (John B. Cockrum, of Indianapolis, Ind., and Gillespie & Fitzgerald, of Springfield, of counsel), for appellant.

Schneider & Schneider, of Paxton, for appellee.

CRAIG, C. J.

Appellee J. S. Cameron, for some 25 years prior to May, 1915, was the owner and engaged in operating a grain elevator and coal yards situated on the north side of the railroad of appellant at Elliott, in Ford county. The elevator was built partly upon the right of way of appellant and partly upon ground owned by appellee adjoining the right of way. There had been a spur track connecting this elevator with the main line of appellant's railroad for some 40 years. The portion of the right of way occupied by the elevator was leased by appellant to appellee, the lease containing a clause that the same might be terminated by appellant on giving 30 days' notice. The rent due under the lease had been paid in advance to February 28, 1916. The railroad company has a single line of main track running east and west through Elliott and crossing Main street, which runs north and south. The depot of appellant is north of the track and just west of Main, street. The elevator of appellee is about 350 feet west of Main street. South of the main track is a side track about 1,276 feet long, which Main street crosses near the middle. North of the main track is another side track or passing track, beginning a short distance east of Main street and extending further east about 2,511 feet. Both these side tracks are connected with the main track by switches at each end. The spur track, which prior to May, 1915, ran to appellee's elevator, had a switch connection with the main track at a point about [277 Ill. 576]750 feet west of Main street, and extended eastward on the north side of the main track a distance of about 603 feet. The removal of this spur track in May, 1915, is the ground of the petitioner's complaint. On May 15, 1915, the elevator was burned, and on June 15, 1915, appellant served notice on appellee that it had elected to cancel the lease, and that appellee remove from the portion of the right of way occupied by him, and it afterwards tendered him the proportional amount of rent for the unexpired portion of the lease, which had been paid in advance. Nothwithstanding the fire, appellee continued to do business at the same place, but after the elevator burned was compelled to load the cars by hand. He also continued in the coal business. About ten days after the fire appellant gave notice that it intended to remove the switch track which led to appellee's place of business, and three days afterwards it caused said track to be torn up and removed.

On June 25, 1915, appellee filed his petition with the State Public Utilities Commission, setting up the foregoing facts and alleging that he had some large corncribs and coal bins near his elevator on his own land, and the taking up of the switch track had caused him great damage, and that he was unable to continue his business with the said switch track taken out; that he proposed to build an elevator on his own premises immediately adjacent to the place where the old building stood, and that it would be necessary that he have the use of the switch track; that officers of the railroad company had insisted that he build an elevator on the south side of the track and on their right of way, which he refused to do because the railroad company could not lawfully lease such ground, Sherill P. Bushnell, who had conveyed to the railroad company the right of way, having retained the right and privilege to use any part of said right of way up to the outer side of the tracks, free of expense, for a warehouse or other purposes for the lumber and coal trade. Appellee protested against the removal of said switch, and it was the prayer of his petition that the Utilities Commission enter an order directing said company to replace said switch.

On July 6, 1915, appellant filed its answer to the petition, alleging that appellee had no vested right in any particular location for the construction of an elevator, or that the relations heretofore existing between appellee and appellant gave the former any right to maintain or have located an elevator at any particular point on its line of railway, denying that it was necessary for appellee to construct the elevator at the point he had chosen, or that the appellant was bound by the laws of the state of Illinois to maintain a track to the elevator where it was located, or that he had the right to select a location for the elevator without regard to the convenience, safety, and accommodation of the public; denying that appellant is without power to lease lands for the construction of an elevator on the south side of its right of way, and denying that appellee is entitled to the relief prayed.

Thereafter the matter was referred to one of the officers appointed by the Commission. The parties were notified, and a full hearing was had, the evidence of the respective parties was heard, the case was argued and submitted, and on December 2, 1915, the order of the Commission was entered, reciting the foregoing facts and other matters shown by the evidence, among others that appellee in the preceding ten years had paid the railroad for grain shipped between $18,000 and $25,000, and showing the number of cars shipped by him from 1906 to 1912, inclusive; that in addition he had received shipments of coal and other freight over the switch in question; that appellee claimed that in a conversation with the general manager of the appellant railroad, held soon after his elevator burned, he said he intended to rebuild on his own ground as soon as the insurance was adjusted, and he soon after did commence to rebuild said elevator; that the chief reason given by the company for the removal of the switch track was a desire to eliminate as an element of danger one of the five main track switches in Elliott; that the railroad station at Elliott had also been destroyed by fire, and the company proposed to build a new station with a more extensive platform, which might require a shortening of the spur or switch track, but apparently did not necessitate its removal entirely, as there was still room enough on the spur track to serve the petitioner's evevator; that from the testimony of the general manager of the road it appeared that if the spur track were relaid on the north line of the right of way it would not imperil the station platform, and that the elimination of the main track switch could be accomplished by laying a spur track to the elevator from the passing track instead of from the main track. The order found from the evidence that the removal of the spur or switch track was not determined upon because of the hazard arising from the main track switch or by the requirements of the new station; that the removal of the spur track was not required by any necessity arising from the operation of the railroad or by any hazard thereby occasioned, and that such removal was not...