GRAY et al. v. CHICAGO, M. & ST. P. RY. CO., 140 F. 337

GROSSCUP, Circuit Judge (after stating the facts). Inasmuch, as the lease to appellee was not made until after the deed in question was delivered to, and recorded by, the Illinois corporation, no rights growing out of, or claiming protection under, the deed, can be held to be barred by the lease. The case before us — except for citizenship, as affecting jurisdiction only — is as if it were a controversy between the original Illinois Company and the appellants.

The contract under which the Illinois Company took possession contemplated, that in consideration of the execution of the contract, the Railway Company would, in the immediate future, build a railroad from Chicago to the Wisconsin state line, and would, in the future, pay the price thereinafter mentioned, to-wit: One dollar, with the agreement that the road would establish and maintain a passenger station, at a designated point on the grantor’s land, at which there would be stopped accommodation trains to take on and leave off passengers. The contract, on its face, was not a deed or conveyance. .

It was an agreement to deed and convey; and, obviously, contemplated that a deed would be subsequently executed and delivered. A deed was executed and delivered, and by the railroad company recorded. Unquestionably, the deed thus executed and delivered marks the culmination of the transcation contemplated in the contract, and, if accepted, constitutes the contract in its entirety between the parties, the preliminary contract being thereby merged in the deed. Whether the deed was accepted is a question of fact to be determined from this record. The contract and deed are each before us.

On their face they appear to constitute two links in a single transaction. The only circumstance, aliunde, that bears upon the question of acceptance, is the stipulated fact that.the deed was delivered to the Railway Company, and by it recorded. There is no evidence of disagreement over its terms, or of protest that it did not correctly embody the agreement between the parties; and no reservation that its delivery and record should not be taken as affecting any rights acquired under the contract.

Upon the facts disclosed, the Railway Company appears to have accepted, without question, the deed as offered; and to have recorded it as the title derived from Gray. Under circumstances such as these, we do not see how the company can escape the legal conclusión that the contract was merged in the deed, the deed thenceforth embodying the reciprocal rights of the parties. But all this being assumed, it is urged that the provision of the deed, that all accomodation trains should be stopped at the station named, on pain of forfeiture or reverter of title to the grantors, is void as against public policy.

True it is, that around a great city like Chicago grow up many large communities at different distances, that can be adequately served only by trains, that from a railroad point of view are purely suburban, but from a point of view that is to give to the communities good service, require schedules that do not admit of the stopping of every train at every station. Under such circumstances, a stipulation, such as is contained in this deed,- might come to be a burden upon the public. But it is not shown, that at the time the stipulation was made, it was a burden on the public.

Nor, as a burden on the public now, is the case under review predicated. The sole justification set up by the railway company, for not stopping the train in question is, not that the stopping of all accommodation trains would burden the public, but that the train in question was not an accommodation train, but a milk train, put on solely for the accommodation of the producers and shippers of milk between Beloit and Chicago.

The Railway Company is not in court with a case showing that accommodation trains are not being stopped, and that the reason why they are not stopped is, that to do so would be against public policy, and a burden upon the public. The case in court simply is a denial by the Railway Company that it is not stopping every train covered by the stipulation. The case thus made out is not one for equitable jurisdiction, but an attempt, rather, to traverse in equity the averment of appellants in the suit at law; and on such traverse to stop the further prosecution of the action at law.

A bill to that end, of course, will not lie. When the appellant sets up some clear danger that the interest of the public in the highway is about to be harmed, and, on such ground, asks' relief, on proper conditions, it will be time to determine what equity can do. The decree of the Circuit Court is reversed, with instructions to the Circuit Court to dismiss the bill for want of equity.