delivered the opinion op the Court.
On the second of January, 1897, appellees were notified that a carload of lumber which had been shipped over appellant’s road had arrived in the yards at Danville, Illinois, that the time for unloading the car would commence at 7 o’clock a. m. of January 4, and that unless appellees ■ unloaded the car within, forty-eight hours from that date a charge of $1 per day or fraction thereof would be made for detention of car and use of track beyond the time limited.
Appellees paid the freight and within a few minutes after 7 o’clock on the morning of th% fourth began to remove the lumber. They continued to have the same removed during that and the day following. They were also engaged in having lumber removed from two other cars, one of which was upon appellant’s road. For that reason, and also because of the bad condition of the ground for thirty or forty feet between the car and the macadamized road over which the teamster was forced to go, they claim they were not able to remove all the lumber within the forty-eight hours. Between 9 and 10 o’clock a. m., January 6, a bill for $1 for the use of thé car for that day was presented. At that time all the lumber but one thousand, seven hundred and sixty feet had been removed. Appellees refused to pay the bill. When their teamster returned for the rest of the lumber a few minutes afterward he found the car locked against him. Appellant, claiming a lien upon the lumber for the $1 charged, refused to allow appellee to take it away. This suit in trover for conversion followed, resulting in a judgment for appellees for $35.
It is clear that the judgment must stand unless appellant at the time the car was locked had a lien for the detention charge of $1. Such lien could arise only by virtue of statute or contract of the parties. Chicago & North Western R’y Co. v. Jenkins, 103 Ill. 588. It is not contended that the statute gave the lien. Nor was there an express contract between the parties for it. It is insisted, however, that as appellant had adopted rules for demurrage charges, which were known to appellee, and because they had paid a like charge in 1890 and had not protested against them since that time, there was such acquiescence as would amount to a contract for a lien.
Railroad companies can not create in their favor a demurrage lien on freight not removed from a car within a short time by simply publishing to the public their intention of doing so. They may attempt it, and shippers and consignees may be compelled to use their roads for the transportation of freight with full knowledge of the publication. Detention charges may be paid a few times by a consignee who may feel that he has been somewhat tardy in removing freight in those particular instances. But for all that, it could not be rightfully held that there was such acquiescence in a rule for demurrage charge as would amount to a contract for it in a future case where the consignee felt that there was an unreasonable insistence of its application. . That is about the case that'is presented to us by this record. The charge was made under a rule of appellant, of which appellees had notice; appellees paid a like charge in 1890 and had used appellant’s road for the transportation of freight ever since; there was no unnecessary delay on their part in removing the lumber from the car in question; the delay seems to have been caused by the muddy condition of the railroad yard in which the car was standing, in which not more' than half a wagon load could be hauled at one time; the time limited by the. notice was, under the circumstances, short; at the time the demurrage bill was presented and the car locked, but one wagon load remained and the teamster was about to remove that. We unhesitatingly say that the action of appellant was, under the circumstances, hasty and unreasonable.
Heither the amount of the judgment nor the question of law involved in the controversy will justify a discussion in detail of the numerous points of contention raised by appellant. We feel that the law of the case was settled in the case of C. & N. W. R’y Co. v. Jenkins; 103 Ill. 588. As to the disputed questions of fact and the rulings of court upon the admissions of evidence and instructions it is only necessary to say that substantial justice has been done and that the judgmentshould.be affirmed. Judgment affirmed.