Chicago & Alton Railway Co. v. Suffern , 27 Ill. App. 404 ( 1888 )

Gary, J.

Stripped of their verbiage, the pleadings In this ease present this state of facts: In 1879, under a eontraet between the parties, the appellants constructed a switch by which cars from the line of their road could be taken to a coal shaft of the appcllees-and returned to the line, thereby furnishing facilities for the appellees to send their coal to market. This condition of things continued until 1887, during all which period appellants furnished to appellees, over this switch, such cars as appellees required for the transportation of their coal, when, by another company, another line of road was constructed, to which the appellees obtained access by a switch so constructed that cars of that other company can be, over the switch connected with appellants’ road, taken upon their line. Thereupon the appellants disconnected the switch from their line, and allege as the reason for so doing, that as the cars of the other company could, over that switch, be taken upon their line,it was dangerous to the lives of their passengers and employes, and to their property, to continue it. The appellees filed their petition for a mandamus to compel the appellants to restore the connection, and thereafter furnish ears for their coal, as before, and rely upon the former course of business between the parties, and upon Sec. 5, Act 13, Cons, of 1870, that “ail railroad companies shall permit connections to be made with their tracks so that any * * * coal bank I* * * may be reached by the cars of said railroad,” and upon paragraph 84, Chap. 114, Starr & Curtis’ Bev. Stat.: “ Every railroad corporation in the State shall furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on its railroads, and at the junction of other railroads, and at such stopping places as may be established for receiving and discharging way passengers and freights; and shall take, receive, transport and discharge such passengers and property at, from and to such stations, junctions and s places5 on and for all trains advertised to stop at the same for passengers and freight respectively, upon the due payment or tender of payment of tolls, freight or fare legally authorized therefor, if payment shall be demanded,” etc.

The appellants say that the provision of the constitution is not self-executing, and, if it were, the manner of connecting is so various under differing circumstances, that mandamus is not an appropriate remedy.

If any degree of certainty as to the manner of connecting in the best way would avail the appellees, the conduct of the parties for the eight years furnishes it; and upon the authority of Vincent v. C. & A. R. R. Co., 49 Ill. 33, if a court of chancery could adapt its process to the relief to which the appellees are entitled, that court would do what appellees now ask to have done, unless the reason for denying it assigned by the appellants is good.

C. & N. W. Ry. Co. v. People, 56 Ill. 365, is authority that if the appellees are entitled to the relief they ask, mamdamus is an appropriate remedy.

And so the whole case turns upon the question whether the fact that a trespass upon the propierty of the appellants might be committed through the facilities furnished by this switch, and thereby the appellants exposed to great injury and loss, is a good cause for discontinuing it. It is obvious that no such trespass can be committed by the other company except over the premises of the appellees, who had it in their power, physically, for eight years, to push cars upon the main line of appellants’ road, but never abused that power.

No motive can be conceived for anybody to do it. The same facilities exist in thousands of places all over “ the land of the free and the home of the brave,” and the nation is not unhappy.

In a case where such large interests are involved, if the real merits of the case are apparent, it is not worth while to spend any time upon the niceties of the special pleading.

The judgment being such as the appellees are entitled to, upon the merits, it is affirmed.

Judgment affirmed.