This is an action, instituted by the plaintiffs, to recover the possession of two tracts of land 100 feet wide, upon which is located the railroad tracks of the Seaboard Air Line Railway Company, one of which tracts the plaintiffs allege the plaintiff railway company owns in fee simple, and over the other it owns a right of way or easement for railroad purposes. The plaintiffs further allege that the defendant is in the unlawful possession of a portion of each of said two tracts of land, and notwithstanding demand has been made upon it to vacate said premises, it refuses so to do.
The defendant denies the plaintiff railway company’s ownership of title and easement in the respective tracts of land; and for further defense alleges, in substance, that in 1923 it was compelled by the Seaboard Air Line Railway Company, under penalty of losing its business with the railway company and the Fruit Growers Express Company, to erect its present ice plant in the town of Hamlet, adjacent to the tracks of the railway company; that said plant was erected at an expense in excess of $200,000, and that as a part and parcel of said plant it constructed an icing platform partially upon the right of way of the railway company, a small portion of the same being upon the tract of land alleged to be owned in fee simple by the railway company; that said platform was erected according to specifications furnished by and at the place designated by the plaintiff railway company and the Fruit Growers Express Company, and is what is known as “a forty-car length island platform”; and that since its erection in 1923 said platform has been used in connection with refrigerating cars for said railway company and
The court, upon motion of the plaintiffs, ordered stricken from the answer the further defense, and the defendant excepted and appealed, and the relevancy of the allegations contained in the further defense is the sole question presented to us for consideration. These allegations are to the effect that the plaintiff Seaboard Air Line Railway Company, the Fruit Growers Express Company, and the Mountain Ice Company planned, schemed, and conspired to destroy the business of the defendant, or to force the defendant to sell its business to the coconspirators of the plaintiff railway company at a grossly inadequate price, and that as a result of and as a part of said conspiracy the plaintiffs have made demand and brought this action for the possession of the tracts of land on which the defendant located and constructed its icing platform under the direction of the plaintiff railway company, and where the defendant has operated the icing platform satisfactory to said railway company and its customers since 1923; and that said possession is not sought for bona fide railroad purposes, but for the unlawful and fraudulent purpose of destroying, or taking without adequate compensation, the business of the defendant.
The defendant has laid the foundation by the allegations in its further defense to offer evidence in support of its contention that the plaintiffs in bringing this action are actuated not by an honest judgment that such right of way is necessary for bona, fide railroad purposes, but by the fraudulent purpose and conspiracy to arbitrarily destroy the business of the defendant, and to enable the coconspirators of the railway company to obtain said business for an inadequate price, by demanding possession of the land upon which said business had been-located at the behest of and operated to the satisfaction of the plaintiff railway company and its customers for more than a decade. The allegations are grave ones, but if the defendant can carry the burden of establishing them by competent evidence, we think, under the circumstances of this case, where the plaintiff is a public service corporation, enjoying the extraordinary powers and privileges necessary for the conduct of railroad business, and owing the correlative duties to the public and its patrons, it was error to deny it the right to do so hy striking the further defense from the answer.
Reversed.