The Wiggins Ferry Co. v. the Ohio

• Decision Date: 30 November 1879
• Citation: 94 Ill. 83,1879 WL 8667
• Parties: THE WIGGINS FERRY COMPANYv.THE OHIO AND MISSISSIPPI RAILWAY COMPANY.
• Court: Illinois Supreme Court

94 Ill. 83

1879 WL 8667 (Ill.)

THE WIGGINS FERRY COMPANY

v.THE OHIO AND MISSISSIPPI RAILWAY COMPANY.

Supreme Court of Illinois.

November Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was an action of assumpsit, brought by the Wiggins Ferry Company, against the Ohio and Mississippi Railway Company, to the April term, 1876, of the St. Clair circuit court.

The Ohio and Mississippi Railroad Company was chartered by the State of Illinois, February 12, 1851, (Private Laws of Illinois, p. 89,) and various amendments to the charter were passed up to the 27th February, 1854,--by one of which it was authorized to extend its road to the Mississippi river.

The Wiggins Ferry Company is also a corporation organized, many years since, under a charter of the State of Illinois, and lawfully empowered by it to purchase, own, sell and convey real estate and interests therein; and, on the 1st day of April, 1858, the last named company, by deed of that date, “for and in consideration,” as expressed therein, “of the future observing, fulfilling and keeping by the party of the second part of the covenants and stipulations thereinafter contained, to be kept, observed and fulfilled by the party of the second part, and also in consideration of $1 paid by the party of the second part,” etc., did “give, grant and convey,” unto the Ohio and Mississippi Rail road Company, as party of the second part, “the right to construct, maintain and use, in, through, upon and over the piece or parcel of ground hereinafter described, all such railroad tracks, depots, warehouses, and other buildings and erections as the said party of the second part shall find to be necessary or convenient to be constructed, maintained or used for the purpose of transacting the business of the said party of the second part, and to keep thereon, without disturbance, all property of every description belonging to, or which may be in the possession, charge or custody of, the said party of the second part, and to take upon and over the said piece or parcel of ground all persons and property, and to use the said piece or parcel of ground in the transaction of the business of the said party of the second part, as the said party of the second part may find necessary or convenient”--and then follows the descriptions of two pieces of land, after which is the following “““ tenendum:” “To have and to hold the said several rights and easements in the said two several parcels of ground above described, unto the said party of the second part, so long as the same shall be used and employed for the uses and purposes of the Ohio and Mississippi railroad, as herein specified, and for no other purposes, even forever; and the party of the second part, as the consideration upon which the said easements and rights are hereby granted, covenant with the party of the first part, as follows:”

Then follow the covenants, the only important one of which, in the present controversy, is the third, which is as follows:

“Third. The said party of the second part will always employ the said Wiggins Ferry Company, party of the first part, to transport for said party of the second part across the said river, all persons and property which may be taken across the said river, either way, by said party of the second part, to or from Bloody Island, either for the purpose of being transported on the railroad of said party of the second part, or having been brought to said river upon the said railroad, so that the said party of the first part, their legal representatives or assigns, owners of the said Wiggins Ferry, shall have the profits of the transportation of all passengers, persons and property taken across the said river either way by said party of the second part, either to or from the city of St. Louis, the said party of the first part, its legal representatives or assigns, owners of the said Wiggins Ferry, charging for such ferriage as low rates as charged by them to any other party between the city of St. Louis and the said island called Bloody Island, in the State of Illinois, which said ferriage shall be paid by the said party of the second part to the said party of the first part, their legal representatives or assigns, owners of the said Wiggins Ferry. The said party of the first part agrees to land a boat at the depot grounds of the party of the second part so long as desired by the said party of the second part, to receive and deliver their freight and passengers with reasonable dispatch, and also to furnish a boat to connect with their night trains upon the payment of a reasonable compensation, whenever the same can be done with safety, navigation permitting.” The deed is inter partes, being sealed by the Ohio and Mississippi Railroad Company as well as by the Wiggins Ferry Company.

On the 5th of February, 1861, the Ohio and Mississippi Railway Company was incorporated by an act of the Illinois legislature for the purpose of purchasing and taking a conveyance of all the railroad property, real and personal, rights and franchises, of the Ohio and Mississippi Railroad Company, either by private contract or at any judicial sale thereof which might thereafter take place.

At the March term, 1862, of the United States Circuit Court for the Southern District of Illinois, a decree of foreclosure was entered against said Ohio and Mississippi Railroad Company, and a sale of its road, franchises, etc., was ordered, to satisfy certain claims and demands secured by mortgage.

On the 2d day of June, 1862, the said Ohio and Mississippi railroad, and the property, real and personal, rights and franchises of the Ohio and Mississippi Railroad Company were sold under that decree and purchased by the Ohio and Mississippi Railway Company.

This suit is to recover for a breach of the third covenant of the Ohio and Mississippi Railroad Company above set out. It is averred in the declaration that, “On the 14th of June, 1862, the defendant, having full power and lawful authority so to do, acquired, by purchase, all the property, powers, privileges, rights and franchises of said railroad company, including the said contract and the lands therein described, and then and there took possession of the same, to which purchase and possession the plaintiff then and there assented, by means whereof the defendant has been from thence hitherto, and still is, under and by virtue of said contract, purchase and possession aforesaid, assented to as aforesaid, in the quiet and peaceable possession, use and enjoyment of said lands therein described, and the defendant thereby then and there became the legal representative and assignee, and succeeded to all the rights and privileges of the said railroad company in and to the said contract, and thereby assumed and became subject to all the covenants, stipulations and obligations thereof,” etc.

The breach averred is, that the defendant therein, “although often requested, has wholly failed and refused to do, but, on the contrary thereof, the defendant, on May 1, 1871, and on divers other days and times, and on every day between that day and the commencement of the suit, at, etc., took across the said Mississippi river, from said Bloody Island to said city of St. Louis, persons and property which had been brought to said river upon the railroad mentioned in said contract, amounting in the aggregate to, to-wit: 300,000 persons, 1000 locomotives, 10,000 omnibuses, 5000 baggage wagons, 40,000 freight wagons, 10,000 freight cars, 10,000 passenger cars, 5000 mail cars, 5000 other kinds of cars, 500,000 tons of merchandize, 500,000 horses, 500,000 head of cattle, 500,000 sheep, 500,000 hogs, 500,000 tons of coal, 500,000 tons of other kinds of freight, and 500,000 tons of other kinds of property; and the defendant also then and there took across the said river from said city of St. Louis to said Bloody Island, for the purpose of being transported on the said railroad, a like number of persons and a like quantity of property as above set forth as having been taken across the said river from said Bloody Island to said city of St. Louis, and defendant did not then and there employ plaintiff to transport for defendant across said river, either way, any of said persons or property which were taken across the said river as aforesaid, by defendant, so that plaintiff should have the profits of the transportation of said persons and property across the said river as provided in said contract, and as defendant had promised, but wholly neglected and refused so to do; and on the contrary thereof, defendant, without the consent and against the protest of plaintiff, then and there employed other persons and corporations to transport the said persons and property across the said river as aforesaid, to-wit: the St. Louis Transfer Co., the Madison Ferry Co., the Illinois and St. Louis Bridge Co., the East St. Louis and Carondelet Railway, the Union Railway and Transit Co., and divers other persons and corporations,-- contrary to the letter and spirit, true intent and meaning of the said contract and of defendant's said undertaking and promises, and in direct violation thereof and of the covenants, obligations and stipulations of said contract; and defendant then and there failed and refused to pay plaintiff the profits of the transportation of said persons and property across the said river, although often requested and demanded, by means whereof plaintiff has been and is deprived of the profits of the transportation of said persons and property across the said river as aforesaid, which profits amount in the aggregate to the sum of $150,000. Yet defendant, although often requested and demanded, has not paid the said several sums of money or any or either of them or any part thereof to plaintiff. To plaintiff's damage $150,000.”

The defendant demurred to the declaration, and the court below sustained the demurrer and gave...