Chicago, Burlington & Quincy R. R. v. Hoyt (1 Ill. App. 374, 1878)

Bailey, J.

-On the 27th day.of Hovember, 1876, appellees exhibited their bill in chancery in the Circuit Court of Cook county, praying for an injunction to restrain the Chicago, Burlington '& Quincy Railroad Company from taking up a certain side-track connecting the main track of said company’s railroad with a track running into a certain grain warehouse in Chicago, known as the “Union Elevator.” The complainants are the owners of an undivided three-fourths of said warehouse, and Armour and Munger, two of the appellants, own the remaining one-fourth; but they, having interest in the subject matter of the suit, adverse to the complainants, were joined with the Chicago, Burlington and Quincy Railroad Company, as defendants to the bill.

An injunction, pendente lite, was granted as prayed for, and afterwards, on the 5th day of April, 1877, the complainants filed a supplemental bill, charging, that said company had refused to deliver at said warehouse certain car loads of grain received by it, consigned thereto, and were refusing to receive for transportation, grain consigned to said warehouse, and praying that said company be commanded to receive grain so consigned, and to deliver the same to said warehouse, and be restrained and enjoined from refusing so to do. Issues were duly formed upon both said original and supplemental bill, by answers and replications, and the cause being heard in the court below, upon the pleadings and evidence, a decree was rendered in favor of the complainants, against said railroad company, in accordance with the prayer of both the original and supplemental bill, from which decree this appeal is prosecuted.

It appears, from the evidence, that the warehouse in question was built in 1861, by Charles M. Smith and Albert Sturgis, in pursuance of a certain agreement between them and the Chicago and Joliet Railroad Company, made on the 26th day August, 1861. By this agreement, Smith and Sturgis undertook to construct, maintain and operate said warehouse, and receive and store therein all grain transported thereto by said company, observing, in so doing, the rules customary with other similar warehouses in Chicago, and exacting a compensation for storage no greater than that charged by other similar warehouses. Said Smith and Sturgis also agreed to furnish to said railroad company, free of cost, the necessary ground adjoining said warehouse, and between the same and said company’s railroad, for laying down tracks, side-tracks and turnouts. Said company, on its part, agreed to lay all necessary tracks, side-tracks and turn-outs to said warehouse, for the use of said railroad and warehouse, in the best practical manner, for the mutual benefit and convenience of the respective parties to said agreement, reserving the right to remove said tracks, in case any of the covenants or agreements on the part of said Smith and Sturgis, should not he fully complied with. Said company further agreed to deliver, or cause to be delivered, to said warehouse, all grain transported over its railroad from all points southward of Chicago, discriminating therein in favor of said Smith and Sturgis, as against other warehousemen in Chicago, provided it could do so legally and without prejudice to its own interest. Upon the construction of said warehouse, the Chicago and Joliet Railroad Company, or its lessee and successor, the Chicago and Alton Railroad Company, laid down two tracks running from the main track of what is now the Chicago and Alton Railroad, into said warehouse, and also constructed in front of and about said warehouse, sidetracks, turn-outs, etc., sufficient for the convenient and economical delivery of grain By it to said warehouse. For several years after its erection, this warehouse was the principal if not the only place in use, for the storage of grain shipped to Chicago over the Chicago and Alton Railroad, but within the past few years, several other similar warehouses have been built on the line of said road, which now compete with it for this business. With the exception only of such grain as has been delivered to it by the Chicago, Burlington and Quincy Railroad Company, the sole business of this warehouse has been the storage of grain shipped over the Chicago and Alton Railroad.

The evidence shows that there are in existence in Chicago, on the line of the Chicago, Burlington and Quincy Railroad, three grain warehousesj known as Burlington elevators “A,” “ B ” and “ C,” of sufficient capacity to store all grain shipped over that road, and furnished with all tracks, side tracks, turnouts, etc., necessary for the convenient and economical delivery of grain thereto by that road. In the year 1866, in consequence of the destruction by fire of one of these warehouses, and of unusually large shipments of grain, the Chicago, Burlington and Quincy Railroad Company, to provide for the additional storage required by the emergency, laid a side track running from its own main track, and connecting, about fifteen feet from the entrance to the Union Elevator, with one of the tracks running into that elevator. So far as appears, no express permission was given by the Alton Company to form this connection, nor does there seem to have been any objection thereto made by said company, or by the owners of the warehouse. By means of the connection thus established^ the Chicago, Burlington and Quincy Railroad Company was enabled to reach the Union Elevator, and during the year 1866 about one thousand car loads of grain were delivered thereto by said company. In the year 1868, this side track was removed by said company, thus severing its connection with said warehouse.

Shortly afterwards, Messrs. Munn and Scott, who, at the time, were managers and part owners of the Union Elevator, applied to said company to relay said track so as to enable the Michigan Central Railroad Company to thereby reach said elevator, for the purpose of receiving grain therefrom for transportation to the East, and on their application the track was relaid upon an express agreement or understanding, as is now alleged, that it should be used for no other purpose except for the removal of grain from said warehouse. It does not appear that the track, since being relaid, has been used for any other purpose than for shipping out grain, excepting that in 1873, about two hundred car loads of grain, mostly damaged, were delivered to this elevator by the Chicago, Burlington and Quincy Railroad Company. This delivery was made under very considerable disadvantages, owing to the fact that the doorways to the elevator were so low as not to admit of the entrance of the cars of that company without the removal of the brakes.

It appears that defendants, Armour and Munger, who are joint owners with the complainants in the Union Elevator, are largely interested in the Burlington Elevators, with which the complainants are seeking to bring the Union Elevator into competition. With a view; to placing the Union Elevator in direct competition with the Burlington elevators, for the storage of the grain shipped over the Chicago, Burlington and Quincy railroad, the complainants, in the year 1874, caused the Union Elevator to be completely rebuilt, and the doorways enlarged so as to admit the Burlington cars, at an expense of something over $100,000. Armour and Hunger being, as it seems, in ignorance of the purpose .for which these repairs were being made, gave their consent thereto, and paid their proportion of the expense incurred. There is no pretense that,. up. to the time of filing the original bill, any efforts or attempts had been made by the complainants to obtain shipments of grain to their warehouse over the Chicago, Burlington and ■ Quincy railroad, but it is expressly averred that they had refrained from so doing in consequence of the hostility of that company, and a fear that should they attempt to obtain such shipments, the connection between said railroad and their warehouse would be instantly severed by the removal of said side-track. Having obtained their injunction restraining the removal of the track, they seem to have commenced soliciting shipments of grain to their warehouse, and having obtained certain consignments which the-company refused to deliver to them, the company at the same time, as is alleged, instructing its agents along its line to receive for shipment no grain consigned to said warehouse, the supplemental bill was filed.

It is insisted that the complainants are not entitled to a decree, because the Union Elevator is not upon the. line of road of the Chicago, Burlington and Quincy Railroad Company, and can only be reached by the use of a track belonging to the Chicago and Alton Railroad Company, the use of which, for the purpose, has not been secured.

The President of the Chicago & Alton Railroad Company was examined as a witness, and from his testimony it appears that the tracks leading to, as well as those inside the elevator, were built by his company out of -its own materials, and that ever since they were built, said company had had charge of said tracks, and kept the same in repair.

He says the Chicago and Alton Railroad Company had never, to his knowledge, given any license to-the Chicago, Burlington and Quincy Railroad Company to run its cars over said track, nor had it, to his knowledge, interposed any specific objection to such use of said tracks,.except that on one or more occasions, it had claimed the first right to the use of the warehouse, though it had never claimed an exclusive right thereto. When his company had no occasion to use said tracks, he supposed the owners of the ground had the right to put them to other uses, but when it did use them, it had a right to them in preference to any one else.

Tinder these circumstances, can it be held that this elevator is on the line of the Chicago, Burlington and Quincy Bail-road?

In Vincent et al. v. The Chicago and Alton R. R. Co. 49 Ill. 33, it was held that where the owner of property adjacent to a railroad had erected thereon' a warehouse which was in readiness for the receipt of freight, and had, with the consent of the railroad company,’for a valuable consideration, laid down a side track, .connecting the track of the company with such warehouse; such side track was to be considered as a part of the line of the company, for the purposes of delivering freight at such warehouse. In the opinion Lawrence, J. says: