#### Clinton E. Graves and Charles F. Hurburgh, copartners, trading as Graves & Hurburgh, for use, etc., Plaintiffs in Error, v. Toledo, Peoria & Western Railway Company, Defendant in Error.

(Not to he reported in full.)

Error to the Circuit Court of McLean county; the Hon. Colostxn D. Myers, Judge, presiding. Heard in this court at the April term, 1916.

Affirmed.

Opinion filed October 13, 1916.

Statement of the Case.

Action by Clinton E. Graves and Charles E. Hurburgh, copartners, trading under the firm name and style of Graves & Hurburgh, for use, etc., plaintiffs, against the Toledo, Peoria & Western Bailway Company, a corporation, defendant, to recover for the destruction of a grain elevator and its contents owned by the plaintiffs, alleged to have been caused by the negligence of the defendant. To review a judgment for defendant, plaintiffs prosecute a writ of error.

The elevator stood on the defendant’s right of way under a lease of the ground by the railroad company *479to the plaintiffs’ vendor, which lease stipulated that the railroad company would not be liable to the owners of the building for damage on account of injuries to the elevator or its contents caused by the lessor or any of its employees, or by fire originating from its locomotives. The plaintiffs took possession apparently with the consent of the defendant, but no new lease was entered into by them. The loss having been paid to the plaintiffs by an insurance company, the plaintiffs brought this suit for the use of the company.

Oglevee & Franklin and Barger & Hicks, for plaintiffs in error; C. O. Carlson, of counsel.

Stevens, Miller & Elliott, for defendant in error; Fifer & Bohrer, of counsel.

Abstract of the Decision.

1. Landlord and tenant, § 415 * —when lessees successor is presumed to know terms of léase. Purchasers of a grain elevator standing on a railroad company’s right of way, the railroad company not being the owner of the building but the lessor, to the owner, of the land on which it stood, held presumed to know not only that the building was on the right of way under some arrangement between the owner and the railroad company, but also what that arrangement was.

2. Railroads, § 166*—what use of its right of way a railroad company is not obliged to permit. A railroad company is under no obligation to permit an elevator to be placed upon its right of way, and if it does so it has the right to exact such terms and conditions as it deems fit to impose as a basis of permitting it to be placed there.

3. Landlord and tenant, § 415*—when lessee’s successor is bound by the original lease. In an action by the owners of a grain elevator standing on the right of way of the railroad company against the railroad company for loss of the building and its contents by fire alleged to have been caused by sparks emitted by de*480femiant’s locomotive, held that, although there was no lease for the ground entered into between the parties, the plaintiffs were bound by the terms of a lease of the ground by the defendant to the plaintiffs’ vendor of the building, which provided that the defendant should not be liable for any damage caused by fire resulting from the operation of its railroad whether or not the plaintiffs knew of such lease.

*

See Illinois Notes Digest, Vols» XI to XV, and Cumulative Quarterly, same topic and section number.

*479Mr. Justice Graves

delivered the opinion of the court.