Appeal by defendant from the Circuit Court of St. Clair
county; the Hon. R.W. GRIFFITH, Judge, presiding. Heard in this
court at the October term, 1949. Order reversed and cause
remanded. Opinion filed January 19, 1950. Opinion modified and
rehearing denied May 13, 1950. Released for publication May 16,
MR. PRESIDING JUSTICE BARDENS DELIVERED THE OPINION OF THE COURT.
Opinion modified and rehearing denied May 13, 1950
The Northern Illinois Coal Corporation, an Illinois corporation, and the Seminole Coal Corporation, an Illinois corporation, plaintiffs appellees, on July 19, 1949, filed their verified complaint in the circuit court of St. Clair county, Illinois, requesting that a permanent injunction issue against Joseph Langmeyer, highway commissioner of Lenzburg township, St. Clair county, defendant appellant, and further requesting that said appellant be restrained during the pendency of this action.
Appellees' complaint states in substance as follows:
That the Northern Illinois Coal Corporation and its wholly owned subsidiary, the Seminole Coal Corporation, are engaged in the business of open cut or strip mining of coal and that the said Northern Illinois Coal Corporation owns or controls a coal field of some 1,000 acres located in said Lenzburg township, St. Clair county, Illinois, which field is being mined by the Seminole Coal Corporation in pursuance to an operating contract with the Northern Illinois Coal Corporation.
That two township roads of said Lenzburg township, one known as the Golden Rule Road and running in a general east-west direction, and the other known as the East Dutch Hill Road and running in a general north-south direction, intersect; that by their intersection these roads form four quadrants and that plaintiffs' land lies within the southeast, southwest, and northwest quadrants so formed; that the greater portion of plaintiffs' lands are located within the southeast and northwest quadrants with only a small area situated within the southwest quadrant.
That plaintiffs have over $1,500,000 invested in real estate, machinery, and equipment and have over $1,000,000 of this sum invested in an office building, tipple, washing and preparation plant, railroad siding, repair shops, and miscellaneous equipment, all of which is located in the southeast quadrant above described. That plaintiffs have nearly completed the mining of coal located in the southeast quadrant and that to mine their coal situated in the northwest quadrant it is necessary to move certain excavating machinery to the northwest quadrant and to construct a haulage road from the northwest quadrant to the plant and equipment located in the southeast quadrant. That, therefor, it is necessary to cross the two township roads, the crossing on the East Dutch Hill Road to be made south of the intersection, and on the Golden Rule Road, west of the intersection. That the Northern Illinois Coal Corporation owns the fee in lands abutting the two said roads at the point of crossing and also owns the fee of said roads subject to an easement of the public for highway purposes.
Certain exhibits attached to and made a part of the complaint set out that the machinery and equipment to be moved by the plaintiffs consists of one Marion 5480 stripping shovel, one Marion 5480 drag line, both on caterpillars, one Marion 4121 coal shovel, and one Marion 111-M drag line. That a submarine electrical cable must be constructed in order to operate excavating equipment. That after the plaintiffs commence to remove coal they will make between 100 and 160 crossings of said roads per day with Mack coal hauling trucks which weigh approximately thirty tons empty and eighty tons loaded. These exhibits also disclose that the defendant highway commissioner insisted that the plaintiffs could not make any crossings over said highways with vehicles which exceed the maximum size and weight as specified by law without first receiving permission from the defendant.
The complaint then sets up the threats of the defendant to cause the arrest of plaintiffs, their officers, agents, and employees who attempt to cross over said highways with vehicles or equipment of excess size or weight.
The complaint also shows that plaintiffs offered to secure a bond or make a deposit of up to $2,000 in escrow to guarantee the maintenance of said cross-overs in good and safe condition.
The complaint further alleges that unless plaintiffs are permitted unmolested by the defendant to make crossings over said township roads as proposed, they will be unable to mine the premises in the northwest quadrant and will be deprived of all means of egress and ingress thereto for the purpose of mining coal and will suffer great and irreparable injury, will be unable to meet their commitments for the sale of coal, that the injury will be recurrent, continuous, and irreparable, and that defendant is unable to respond to plaintiffs in damages should any be recovered against him.
On the 15th day of July 1949, the defendant filed a complaint for injunction in the circuit court of St. Clair county against plaintiffs appellees in which suit the defendant sought a temporary writ of injunction and a permanent writ restraining appellees from moving their vehicles or combinations of vehicles, equipment, draglines, and so forth, across said roads.
On the 19th day of July 1949, a temporary writ of injunction was issued without notice and served on appellant, enjoining and restraining him until the further order of the court, in manner of form as prayed by said complaint. Plaintiffs were required to furnish a $10,000 bond conditioned that the plaintiffs pay the defendant or his successors all damages which may be sustained by him in his official capacity and all costs and damages that might be awarded in the event that the temporary injunction was dissolved. Friday, July 22, 1949, after notice to opposing counsel, appellant moved that said order granting the temporary writ of injunction be vacated, which motion was denied on July 25, 1949. Appellant now asks that this court review the action of the lower court.
The appellant assigns error of the trial court in granting the temporary injunction and in overruling his motion to vacate the same. He raises a number of questions in his brief but his argument is almost entirely directed to the contention that appellees' actions are governed by paragraphs 124, 131, and 133 of an Act entitled, "An Act in Relation to the Regulation of Traffic" (Ill. Rev. Stat. 1947, ch. 95 1/2, pars. 221, 228 and 230 [Jones Ill. Stats. Ann. 85.253, 85.260, 85.262]); that therefor they must obtain special permits from him as township highway commissioner, a local authority. If he refuses to grant their permits, then their proper remedy is a writ of mandamus and not that of an injunction. The appellant also points out in his brief that a ...