Cleveland, C. C. & St.L. Ry. Co. v. Hobbie , 1895 Ill. App. LEXIS 789 ( 1895 )

Mr. Justice Harker

delivered the opinion of the Court.

With the case was taken appellee’s motion to dismiss the appeal for want of jurisdiction. The motion is founded upon the claim that a freehold is involved and that the appeal should have gone to the Supreme Court.

We do not think a freehold is involved and for that reason the motion to dismiss is overruled.

The subject-matter of this suit is the reservation in the deed from Frances L. Hobbie, Walter S. Hobbie and Isaac E. Hobbie, executed to the Chicago, La Fayette & Cincinnati Eailroad Company on the 3d of August, 1885. It read as follows:

“ The said Cincinnati, Lafayette & Chicago Eailway Company, its successors and assigns, agree to make and forever maintain for the use and benefit of said Frances L. Hobbie, Walter S. Hobbie and Isaac E. Hobbie, and each of them, their heirs and assigns, and the heirs and assigns of each of them, a good and sufficient farm crossing over and across the land hereby conveyed at a point where said Walter S. Hobbie, Isaac E. Hobbie and Frances L. Hobbie now have a farm crossing over and across said right of way; said farm crossing to be made and maintained as aforesaid, across the land hereby conveyed, and to be an extension and continuation of said farm crossing over and across said right of way.”

The record shows that proof was made of all the material facts alleged in the bill and there is no serious dispute over them.

The chief contentions of appellant are that all persons necessarily interested in the subject-matter of the litigation were not made parties to the bill, and that appellant is not a successor of the Cincinnati, Lafayette & Chicago Eailroad Company.

Heither Frances L. Hobbie nor Isaac Hobbie were necessary parties to this suit. They had quit-claimed to appellee all their interest in the southeast quarter of section thirty-three. Such conveyance carried with it the right to the farm crossing reserved. The crossing is upon that tract of land. Consequently, the only party whose rights are affected by the closing of the crossing, is appellee.

Much space is taken by counsel for appellant in his brief upon the contention that appellant is not the successor of the Cincinnati, Lafayette- & Chicago Eailroad Company, but is merely operating the railroad under an operating contract with that road. We can not review in detail all the evidence in the record which confronts and overthrows that contention, but satisfy ourselves with saying that it sufficiently shows that the position of appellant in the operation of the road, the use of the side tracks at the place where the reservation of the deed requires a farm crossing, and, the obstruction of the crossing by its rolling stock, is that of successor to such railroad.

It is also argued with great earnestness, that owing to a change in the situation of this property since the reservation was made, and existing circumstances, the erecting and maintaining of this farm crossing would be a great embarrassment to appellant in operating its railroad.

The change in situation consists in the erection of eleven side tracks and other improvements of like character, not due to any action of appellee or either of his immediate grantors, but to the Cincinnati, Lafayette & Chicago Railroad Company and appellant. The matter of inconvenience to appellant in the operation of its road could have but little influence in the decision of the controversy over this reservation. It is not the business of courts to make contracts, but to enforce them.

We are clearly of the opinion that the decree of the Circuit Court should be affirmed.