121 Ill. 483 | Ill. | 1887
delivered the opinion of the Court:
Section 1 of the act of the General Assembly in relation to “fencing and operating railroads,” in force July 1, 1874, provides “that every railroad corporation shall, within six months after any pai;t of its line is open for use, erect, and thereafter maintain, fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, etc., with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation, when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad. ”
Two questions are made on this record: First, whether, under the provisions of the statute cited, it is the duty of the railroad company to construct a line of fence on the south line of its right of way, where the same passes over and through the lands owned by the relator; and second, can respondent be compelled to perform its statutory duty in that regard, by mandamus. These questions will be considered briefly in the order stated.
It is not denied by the respondent the statute imposes the duty to erect and maintain a fence on both sides of its road, suitable and sufficient to prevent stock from getting upon its railroad. Indeed, that duty was expressly recognized in this case, for when the company was notified by the relator to build, a fence on the south line of its road, where the same passes over and through his lands, it did construct a fence on its right of way ten feet north of the south line of its right of way. The question now is, whether a railroad company, in complying with the statute in question, may build a fence required thereby, anywhere on its right of way except on the line between its right of way and the adjoining owner’s land, or, what is the same thing, is the fence now constructed, after notice given, ten feet within and upon its right of way, and that distance from the adjoining owner’s land, a compliance with the provisions of the statute in regard to fencing railroads ? It is thought it is not. The statute is so plain in this regard, it seems idle to attempt to construe it. It makes it the duty of the company to erect a fence on “both sides of the road, ”— that is, so as to embrace the right of way; and so this court has held in Wabash, St. Louis and Pacific Railway Co. v. Zeigler, 108 Ill. 304. In that case it was decided a fence built two feet inside of the right of way was not constructed in conformity with the statute. The suggestion the “sides of its road” may mean the mere “track” upon which trains are moved, is too absurd to be seriously considered.
The second point presents some difficulty, and is not altogether free from doubt. The insistence is, as the statute which imposes the duty upon a railway company to erect fences on the “sides of its road,” gives the adjoining land owner the privilege, on the failure of the company, after notice, to construct the fence himself, and recover double its value, with interest, that the remedy so provided is exclusive. It is doubtful whether the adjoining land owner, under the facts in this case, as they appear on demurrer to the petition, would have the right or privilege to construct a fence on the south line of respondent’s right of way. It is seen the company, in compliance with the notice given, did construct a fence on its right of way. The complaint is not that the company did not erect a fence when notified to do so, but that it did not erect it on the south side of its right of way, as it was its duty to do. The statute does not contemplate there may be two fences erected on the right of way on the same side of the track. That would render it difficult, if not impracticable, C? for the adjoining land owner to have the privilege of a farm crossing the statute declares he may have, and which is necessary in this ease, as the relator’s land lies on both sides of the right of way. The remedy given the land owner to erect a fence, and recover for it under the statute, does not seem to be applicable, and it would seem the only remedy left the land -owner, under the facts of this ease, is to compel the company to perform the duty it has undertaken, in compliance with the provisions of the statute. That can only be done by mandamus, •and such is an appropriate remedy. Had the company refused to erect a fence after notice, then, and not till then, the ■contingency would have arisen in which the land owner might have erected the fence and recovered the statutory penalty. But that it did not do, and it would seem to follow, the most ■complete, if not the only, remedy, the land owner would have, would be to compel respondent, by mandamus, to erect the fence required by the statute, in the manner it contemplates shall be done, viz., on the south line of its right of way. Placing the fence where it is according to the allegations of ihe petition, which, of course, the demurrer admits to be true, is mere captious conduct to avoid a plain and obvious statutory duty, which the law will not tolerate. To permit such ■conduct would be to allow the corporation, by a mere trick, to defeat the statutory rights of the adjoining land owner. ■Corporations, like individuals, ought to observe good neighborship, and if they will not voluntarily square their conduct .to such a rule, they should be compelled to do so.
But there is another view that may be taken. Section 9 of the “Act to revise the law in relation to mandamus, ” (Rev. Stat. 1874,) provides: “The writ of mandamus shall not be denied because the petitioner may have another specific legal remedy, when such writ will afford a proper and sufficient remedy. ” Under this statute, it has been held by this court, and the Supreme Court of the United States, the inquiry whether there may be another or even a better mode of redress than one asked for, does not arise, and so the rule is now well settled that mandamus will lie in all cases where it affords a proper and sufficient remedy for the enforcement of a legal right or an ■obvious duty, the performance of which involves the exercise ■of no discretion, without regard to whether there may be some ■other adequate remedy or not. (People v. Village of Crotty, 93 Ill. 180; Lower v. United States, 91 U. S. 536.) Here, it was the plain duty of respondent, when it undertook to build the fence in compliance with the statute, after notice, to build on the line between its right of way and the land of relator. In no other way could it comply with the statute, and mandamus is an appropriate remedy to compel the performance of the legal duty in that respect.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
