The County of Cook v. the Chicago

• Decision Date: 30 April 1864
• Citation: 1864 WL 3076,35 Ill. 460
• Court: Illinois Supreme Court
• Parties: THE COUNTY OF COOK et al.v.THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

35 Ill. 460

1864 WL 3076 (Ill.)

THE COUNTY OF COOK et al.

v.THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

The case is sufficiently stated in the opinion.

Clark, Cornell & Norton, for appellants.Walker & Dexter, for appellee.

BECKWITH, J.

This is a suit in equity to restrain the appellant and its treasurer from collecting a tax assessed by its board of supervisors upon the rolling stock of the appellee. The bill alleges that the appellee was authorized to construct and maintain, and that it has constructed and is operating a railroad from Junction, in Du Page county, to Galesburg, in Knox county, and that it does not own or operate any railroad in Cook county. The bill further alleges that the appellee runs its trains over a section of the railroad of the Galena and Chicago Union Railroad Company, located in Cook county, under a contract of lease; paying to that company a stipulated rent for the right and privilege of so using its road; and that the tax was assessed for such running of its trains. A general demurrer was filed, which was overruled, and a decree was rendered enjoining the collection of the tax.

The bill does not state the nature of the contract between the appellee and the Galena and Chicago Railroad Company, with sufficient particularity to enable us to determine whether the appellee had any vested interest in the section of road over which it runs its trains, or had a mere license to run them; nor does it allege the number or kind of trains run--whether they were passenger, freight, construction, or gravel trains; nor the regularity with which they run--whether regularly, or in cases of extraordinary emergency. For aught that appears from the bill, the trains may have been occasional ones, run as extraordinary exigencies required. The allegation of the bill that the trains of the appellee were run over the section of road in question under a contract of lease, in consideration of a stipulated rent for the right and privilege of using the road for that purpose, only imports that the appellee had the right and privilege of running its trains under a contract.

A contract for the right to pass over the lands of another, is an easement, extending only to a temporary disturbance of the owner's possession. The grantee of such an easement is not the owner or occupant of the estate over which it is granted.

The allegation of the bill, that the taxes are claimed to be legally assessed by reason of such running of trains, is clearly insufficient to justify us in so holding; but the parties under their stipulation¹ have agreed to consider it as a fact, stated in proper form.

We are unable to perceive any liability of the appellee to be assessed for its rolling stock, merely because it runs its trains over a section of road, under a mere easement or license. The companies whose railroads terminate in Chicago, for convenience in receiving and delivering freight in that city, use each other's roads; and no one has supposed that each company was liable to be taxed for its rolling stock, by reason of such user or right of user. It was insisted in argument that the appellee was an occupant of the section of road over which it ran its trains; but the mere running of trains over a road does not make the company running them an occupant with any vested interest in the road.

The statute provides, that “the rolling stock of railroad companies shall be listed and taxed in the several counties, towns and cities pro rata, in proportion as the length of the main track in each county, town or city bears to the whole length of the road.” While we are not prepared to say that a leased road may not be a part of the main track of the lessee within the meaning of the statute, we think it clear that a road over which a company occasionally runs its trains under a mere easement or a license, is not any part of its main track. As, according to the allegations of the bill, and the stipulation of the parties, this was the only ground for assessing the tax, we have no hesitation in holding it to have been illegally assessed.

We have carefully examined the former decision of this court in regard to the asserted right of bringing a bill in equity to restrain the collection of a tax illegally assessed, and we have been unable to find any decision asserting equitable jurisdiction in such cases without regard to special circumstances.

In Cowgill v. Long, 15 Ill., 202, a bill was filed to restrain the collection of a tax, and the court, in passing upon the objections to its validity, say, “if this were the only point in the case, the complainants would clearly be entitled to the relief sought.” The remark was an incidental one, and not intended as decisive of the case. Immediately following it the court proceeds to show that the alleged defects had been remedied by an act of the legislature, and on that ground the relief sought was denied.

In The Ill. Cent. R. R. Co. v. The County of McLean, 17 Ill., 291, the question was...