Chicago General Railway Co. v. John Spry Lumber Co., 60 Ill. App. 646 (1895)

Dec. 2, 1895 · Illinois Appellate Court

60 Ill. App. 646

Chicago General Railway Company v. John Spry Lumber Company.

1. Actions—When the Form, Must he Ex Delicto.—Assumpsit will not lie for wrongfully going upon the premises of another; the action must be in form ex delicto.

Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Arthur Chetlain, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed December 2, 1895.

Frederick S. MoClory, attorney for appellant.

G. W. Stanford, attorney for appellee.

Mr. Presiding Justice Gary

delivered the opinion oe the Court.

The declaration, to which a demurrer was sustained and judgment entered for the appellee, was in assumpsit, the ground of action alleged being that the appellee entered upon, used and occupied the rails and railway tracks of the appellant in twenty-second street in Chicago, in and about the business of transporting upon and along the same four thousand loads of coal, ice, wood, and other property, and building material, to the great wear and tear and damage of the rails and railway tracks, and the supports thereof, thereby obstructing the tracks and preventing the cars of the appellant from running thereon. And that a reasonable compensation would be one thousand dollars.

No contract between the parties is alleged. Now, either the appellee had the right to transport loads along the tracks, in which case no compensation can be claimed, or it had not such right, and went on the tracks wrongfully, in which case assumpsit will not lie, but the action must be ex delicto. Ingersoll v. Moss, 44 Ill. App. 72. The judgment is affirmed. '