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Co. 169 id. 33; I Elliott on Railroads,-2d ed.-sec. 7; see, also, Barsaloux v. City of Chicago, 245 Ill. 598.

The question whether elevated roads in a municipality, and electric street railways and interurban railroads outside of municipalities, should be held to be commercial or street railways has most frequently arisen with reference to the right to place such roads in a public street or highway, and what has been said in the cases in this and other jurisdictions now cited and relied upon by appellant, while entirely proper in the particular cases where used, in view of the questions there raised and the charter powers granted to such roads, can have no bearing as to the applicability of a statute requiring the fencing of railroad rights of way outside of municipalities. In some States interurban railroads are expressly required by statute to fence their track or right of way, and in others, where there is no such statute referring to them, it has been generally held that a statute requiring all railroads to be fenced applies to interurban railroads. (3 Elliott on Railroads,-2d ed.-sec. 1906b, note, and cases cited; Booth on Street Railways,-2d ed.sec. 459; 3 Dillon on Mun. Corp.—5th ed.—sec. 1258.)

A very similar question to the one here was under consideration of this court in Shea v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 250 Ill. 97, where it was argued that the Mattoon City Railway Company, operated by electricity and incorporated under the general Incorporation act, was not subject to the act as to fencing railroads. It was there stated (p. 101): "Under the evidence in this case the Mattoon City Railway Company seems to be operating a commercial railroad upon its own right of way. The Railroad and Warehouse act is the only authority under which such a railroad can be so operated in this State. (Citing authorities.) It may be doubted whether a corporation exercising the privileges and franchises granted by that act could repudiate the liabilities imposed by statute upon corporations organized under it."

Appellant concedes that it is not only carrying passengers but express, and insists that it has a right to do so. As long as it is carrying on commercial business it is in no position to insist that it should not be governed by the same rules that apply to commercial railroads under like circumstances.

Appellant further argues that the court erred in refusing to instruct that appellee was guilty of contributory negligence in permitting his cow to go upon his land adjacent to the railroad right of way when he knew said right of way was not fenced. The duty of appellant to erect a fence suitable to keep stock off its railroad is absolute. (Bischof v. Illinois Southern Railway Co. 232 Ill. 446.) Appellee had the right to the use of his land for pasturing purposes, and appellant cannot insist on the denial of such a right in order to escape liability for its failure to perform its duty in fencing its right of way. Ewing v. Chicago and Alton Railroad Co. 72 Ill. 25; Cairo and St. Louis Railroad Co. v. Woosley, 85 id. 370.

When the act as to fencing railroads was enacted, in 1874, interurban railroads were unknown, but the mischief to be prevented and the remedy sought under this act apply with equal force to an interurban railroad as to those roads generally known as steam or commercial railroads. The fact that the last section states that the act does not apply to horse or street railways must be construed in the light of the then purposes and uses of horse and street railways. Appellant, where its line is operated outside of municipalities, must be treated on this question on the same basis as an ordinary steam or commercial railroad, and therefore within the spirit of said act as to fencing railroads. To hold otherwise would be to give an unreasonable construction to the statute and one contrary to its object and purpose.

The judgment of the Appellate Court will be affirmed.
Judgment affirmed.

J. S. SNELL, JR., et al. Plaintiffs in Error, vs. WILLIAM L. HILL, Trustee, et al. Defendants in Error.

Opinion filed April 23, 1914.

I. VENDOR AND PURCHASER-When purchaser becomes equitable owner of land. One who enters into a written contract with an agent having the exclusive sale of land and the trustee holding the legal title, and who thereafter pays for the land according to the contract and enters into possession, is the equitable owner of the land and is entitled to demand a conveyance of the legal title.

2. SAME—when contract for purchase of land is notice to subsequent purchasers. A recorded contract for the purchase of land made with the owner's authorized agents, coupled with open, notorious and continued possession under it, is notice of the equitable owner's interest in the land to all subsequent purchasers.

3. SPECIFIC PERFORMANCE—when purchaser from party to contract may be required to execute deed. A third person who accepts a conveyance of land with full knowledge of a prior contract by his vendor for its sale holds the land in trust for the original vendee, and a court of equity having jurisdiction of the subject matter and of the person of the third party may compel him to carry out the contract, though it has no jurisdiction of the original vendor.

4. SAME when equitable owner is not chargeable with laches. An equitable owner of real estate under a written contract of purchase, who has paid the consideration for the same and who is in possession of the premises, is not chargeable with laches in seeking specific performance of the contract while he is in such possession.

5. LIS PENDENS parties acquiring title after suit brought are bound by decree. Parties who purchase land after a suit is begun to require their vendor to carry out a prior contract for the sale of the land to the father of the complainants, and who become parties to the suit by an intervening petition, take subject to the complainants' rights and are bound by the decree.

WRIT OF ERROR to the City Court of East St. Louis; the Hon. MORTIMER M. MILLARD, Judge, presiding.

D. J. SULLIVAN, for plaintiffs in error.

SCHAEFER & KRUGER, for defendants in error.

Mr. JUSTICE CRAIG delivered the opinion of the court: Plaintiffs in error, complainants in the court below, filed their bill in chancery for the specific performance of a contract for the conveyance of certain real estate in the city of East St. Louis. The bill alleges that the father of the complainants, J. S. Snell, Sr., on May 16, 1891, entered into a contract with the owners of said real estate, the material parts of which are as follows:

"May 16th, 1891.

"In consideration of a good warranty deed, to be delivered on completion of a contract, of a certain tract of land, being one hundred feet by one hundred and fifteen to alley, on the corner of Cahokia street and Porter avenue, in Dexter's Third addition to East St. Louis, St. Clair county, State of Illinois, and an equal amount facing the south on Tudor avenue and directly in the rear, I, J. S. Snell, party of the first part, with Dexter & Co., of East St. Louis, party of the second part, hereby agree to do work on Dexter's Second and Third addition to East St. Louis, grading the streets in said addition as follows, [describing nature of work and price to be paid per foot for moving dirt and price per cubic yard,] and after finishing all work needed in said addition, if the purchase price of said lot, which is $2000, is not yet exhausted, then the grantee shall give back a mortgage to secure the balance remaining unpaid. Party of the first part, DEXTER & BRO. Per William L. Hill, trustee. Party of the second part, J. S. SNELL."

George Grave, witness.

The complainants further aver that after said tract was platted, the portion referred to in the contract as fronting on Piggott avenue became lots 15 and 16, in block 4, in Dexter's Third addition to the city of East St. Louis; that in preparing said contract the tracts conveyed were not described as lots, for the reason that the land had not then been platted. Complainants further aver that in pursuance of said contract said J. S. Snell, Sr., performed labor upon said streets until they were completed; that upon completion of said work a settlement was had between said Snell and Charles Dexter and William L. Hill, trustee, and it was found that the work performed by said Snell amounted to over $1000, which was not sufficient to pay for both tracts of land, and it was agreed that said Snell should sur

render the tract of land facing on Tudor avenue, which he did, and was to have a proper deed of conveyance conveying to him said lots 15 and 16, in block 4, of Dexter's Third addition to the city of East St. Louis; that since the settlement aforesaid said Snell has been entitled to a deed of conveyance for the said premises; that from the making of said contract until his death said Snell had been in possession of said premises, except for the past ...... years one Edward Burroughs has wrongfully entered upon said premises and now claims some interest, but complainants aver that he is a trespasser and without right or title to said premises; that said Snell departed this life, intestate, January 23, 1909, leaving no widow, but leaving surviving him the complainants, his only heirs-at-law; that said Snell repeatedly demanded of Charles Dexter and William L. Hill, trustee, a proper deed of conveyance conveying the lots in question, but that said Dexter and Hill neglected to execute and deliver to said Snell any deed of conveyance to said premises; that shortly after said Snell became entitled to such deed said Dexter and Hill became, and have ever since continued to be, non-residents of the State of Illinois, and their place of residence has ever since been unknown to said Snell and the complainants. The bill makes various parties defendants, including Edward Burroughs, J. A. Ferguson, of Denver, Colorado, and Wyllian W. Dexter, whose place of residence is unknown. The bill was filed April 7, 1909, and the first insertion of the publication notice to the nonresidents was made April 8, 1909, and notices were mailed by the clerk on April 15, 1909.

Edward Burroughs filed an answer denying the allegations of the bill, and while the decree makes no reference to him or his rights, it does not appear that he has any rights in the premises and he has not joined in the writ of error, so it is not necessary to consider him in the matter.

At the December term, 1909, proof was made of publication and a decree pro confesso was entered against J. A.

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