The St. Louis Nat'l Stock Yards v. the Wiggins Ferry Co..

• Decision Date: 31 May 1885
• Parties: THE ST. LOUIS NATIONAL STOCK YARDSv.THE WIGGINS FERRY COMPANY.
• Court: Illinois Supreme Court

112 Ill. 384

1884 WL 10021 (Ill.)

54 Am.Rep. 243

THE ST. LOUIS NATIONAL STOCK YARDS

v.THE WIGGINS FERRY COMPANY.

Supreme Court of Illinois.

Filed at Mt. Vernon Sept. 27, 1884.Rehearing denied May Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

The bill of complaint exhibited in this case by the St. Louis National Stock Yards, in the circuit court of St. Clair county, on February 10, 1882, sets out that the complainant, being the owner of United States survey No. 627, containing four hundred acres of land adjacent to East St. Louis, upon which tract its stock yards were situated, was desirous of having a connecting railway track as near as might be to the East St. Louis stations of divers railroads; that the Wiggins Ferry Company, being the owner of land between said survey 627 and said railroads, on or about May, 1875, offered to give complainant, for the purpose of a right of way for said contemplated connecting track, a strip of land sixty feet wide, (part of said ferry company's land,) extending from complainant's survey 627 to the main track of the Wabash railway, on the condition that complainant would locate and construct the track upon the ferry company's land north of Stock Yard avenue, an improved highway leading from the stock yards to Front street, on the Mississippi river, at East St. Louis, and so as to enable the ferry company to lay out the land between Stock Yard avenue and the proposed track, into lots, of sufficient depth for manufacturing purposes, and to permit holders of lots abutting the track to connect therewith; that complainant accepted the proposal so made, and thereupon, in pursuance of the agreement, laid out a sixty feet right of way upon and across the ferry company's land, in July, 1875, and within sixty days thereafter, with the knowledge and consent of such company, constructed said projected connecting track on said right of way; that the entire length of the connecting track was three thousand one hundred and fifty feet, permanently built, at a cost to complainant of $12,000,--one thousand seven hundred and fifty feet of it being upon this right of way, the other one thousand four hundred feet being upon complainant's survey 627, and including a permanent bridge built across Cahokia creek; that the part of the track upon survey 627, including the bridge, cost $7000 out of the total of $12,000, and would not have been built, and was and is of no use to complainant without the other one thousand seven hundred and fifty feet, each being a necessary part of the entire connecting track; that ever since the completion of the track, in the fall of 1875, it was, with the knowledge and acquiescence of the ferry company, maintained and operated by complainant, for more than five consecutive years; that in 1876 complainant applied to the ferry company for a deed of said right of way, and the latter promised to make it as soon as it could have a survey made of the sixty feet wide strip, and thereafter, on a subsequent application, refused to make a deed; that on April 17, 1881, the ferry company commenced suit in an action of forcible detainer, against complainant, to recover possession of the middle twenty feet of said sixty feet wide right of way, one thousand seven hundred and fifty feet in length, containing said connecting track, and on June 1, 1881, the ferry company made a lease for ten years for said middle twenty feet, for $250 per annum, to the East St. Louis Connecting Railway Company; that thereafter the ferry company recovered judgment in the forcible detainer suit, which judgment was affirmed by the Appellate and Supreme courts, whereupon, on January 30, 1882, a writ of restitution was issued. The bill prays that the ferry company may be enjoined in the premises, that it be required to make a conveyance of the right of way to complainant, and that the lease to the connecting railway company be cancelled. The circuit court, on the hearing, denied the relief prayed for, and ordered the bill to be dismissed. On appeal to the Appellate Court for the Fourth District, the decree was affirmed, and complainant appealed to this court.

Mr. JOHN B. BOWMAN, Mr. A. S. WILDERMAN, and Mr. R. F. WINGATE, for the appellant:

The forcible detainer suit in 102 Ill. 514, was an action at law, and did not put in issue any of complainant's equities. Those equities were not and could not be adjudicated. Wilburn v. Haines, 53 Ill. 207.

That there was a contract between the parties as to the right of way, enforcible in equity, appears from the following cases: Bohanan v. Bohanan, 96 Ill. 591; Kurtz v. Hibner, 55 Id. 514; Bright v. Bright, 41 Id. 97; Langston v. Bates, 84 Id. 524; Borders v. Murphy, 78 Id. 81; Coles v. Pilkinton, L. R. 19 Eq. 174; 11 Eng. (Moak's ed.) 768. A representation made by one party, for the purpose of influencing the conduct of the other party, and acted on by him, will, in general, be sufficient to entitle him to the assistance of a court of equity. Coles v. Pilkinton, L. R. 19 Eq. 174; Loffus v. Maw, 3 Giff. 603; Hammersley v. DeBill, 12 C. & F. 62; Pomeroy on Contracts, sec. 126, and notes; Williams v. Evans, L. R. 19 Eq. 574.

The expressing of the terms of a contract inartificially will not prevent its enforcement, if the intention is apparent from the whole instrument. Bull v. Bell, 4 Wis. 54.

When the agreement leaves the precise location of the land in doubt, but the parties themselves have located it by giving and receiving possession, the location becomes definite. Parkhurst v. Van Courtland, 14 Johns. 15.

A right of way, whether by condemnation or grant, continues during user, by legal implication. Goddard on Easements, 451.

If there be a grant by a land owner to a railroad, for the purpose of its right of way, or where the land had been taken for such a purpose by the exercise of the right of eminent domain, prior to the adoption of the present constitution, it would seem to convey to the railroad company the fee; but that fee would be a base or qualified fee, just like the fee of a street of a city. It would be determinable upon the cessation of its use for the purposes of the grant or condemnation. Ferry Co. v. Railway Co. 94 Ill. 83; Pierce on Railroads, 130, 157; Norton v. Railway Co. 9 Ch. Div. 623; S. C. 26, Eng. (Moak's ed.) 394.

A license is irrevocable if the licensee, acting on the permission granted, has executed a work of a permanent character, and has incurred expense in its execution. Goddard on Easements, 471; Russell v. Hubbard, 59 Ill. 335; Balinseifer v. Forbes, 74 Ill. 183; Vegte v. Water Power Co. 4 C. E. Greene, 153; Wood v. Leadbitter, 15 M. & W. 838; Swartz v. Swartz, 19 Ind. 447; Morawetz on Private Corp. sec. 82; Railroad Co. v. Thornton, 103 Ill. 187; Bigelow on Estoppel, 505; 2 Pomeroy's Eq. Jur. sec. 802.

There was such possession and performance of the contract as to take the case out of the Statute of Frauds. Wheeler v. Frankenthal, 78 Ill. 127; Smith v. Yocum, 110 Id. 145; Weaver v. Poyer, 79 Id. 417; Browne on Frauds, sec. 448; Caldwell v. Carrington's Heirs, 9 Pet. 103; Williams v. Morris, 95 U. S. 457.

Mr. CHARLES W. THOMAS, for the appellee:

Under the pleadings in this case, one of two things, only, can be done: Either the specific performance of a contract to convey must be decreed, or the Wiggins Ferry Company must be perpetually enjoined from dispossessing appellant, on the ground that such an act would be the fraudulent revocation of a license.

There can be no specific performance of a contract to convey, because it has been adjudicated that the supposed contract to convey was a mere license. It is only contracts that courts of equity will specifically enforce. A parol promise to convey, where the promisee takes possession and makes valuable improvements, and performs or offers to perform, may be enforced. Such are the cases cited by appellant, of Kurtz v. Hibner, 55 Ill. 514, Bright v. Bright, 41 Id. 87, Smith v. Yocum, 110 Id. 142, and Bohanan v. Bohanan, 96 Id. 591.

While a court of equity may restrain the exercise of a legal right when inequitable and against conscience, it will not, as a general thing, enforce affirmative promises which were never made. Weaver v. Poyer, 79 Ill. 417.

A court of equity will not, by injunction, place a party in possession of land from which he has already been ousted. Wangelin v. Goe, 50 Ill. 459.

The writer has been unable to find a case where a mere licensee was, after a revocation, afforded any affirmative relief in the shape of a conveyance. In the following cases, cited by Bingham in his work on the Sale of Real Property, (chap. 111, sec. 1,) no attempt at affirmative relief is disclosed: Yeakle v. Jacobs, 33 Pa. St. 376; Cook v. Stearns, 11 Mass. 533; Mumford v. Whitney, 15 Wend. 380; Otis v. Hall, 3 Johns. 450; Chandler v. Duane, 10 Wend. 563; Stevens v. Stevens, 11 Metc. 251; Foot v. Railroad Co. 23 Conn. 214; Selden v. Canal Co. 29 N. Y. 633; Hewlins v. Shippam, 5 B. & C. 232; Pierrepont v. Barnard, 6 N. Y. 679; Miller v. Railroad Co. 6 Hill, 61; Moulton v. Faught, 4 Me. 298; Woodward v. Seely, 11 Ill. 157.

A parol license to operate a line of railroad over the land of another, is within the Statute of Frauds. Browne on the Statute of Frauds, secs. 28, 29, 30; Benedict v. Benedict, 5 Day, 464.

There can be no estoppel here, for the reason there has been no fraud or deception practiced. Appellant has not in any manner been misled or fraudulently induced to build a road over the lands of the ferry company by any promise of any future conveyance.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The arrangement under which the embankment and railroad track in question were constructed, was made with S. C. Clubb, the superintendent of the Wiggins Ferry Company. Question is made as to what was the character of that...