The Peoria v. the Peoria

Citation105 Ill. 110,1882 WL 10485
PartiesTHE PEORIA AND PEKIN UNION RAILWAY COMPANY et al.v.THE PEORIA AND FARMINGTON RAILWAY COMPANY.
Decision Date20 November 1882
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the County Court of Peoria county; the Hon. JOHN C. YATES, Judge, presiding.

Messrs. STEVENS & LEE, and Mr. JOHN B. COHN, for the appellants:

The petitioner failed to prove its corporate existence. That such proof was necessary, see Allman v. Havana, Rantoul and Eastern R. R. Co. 88 Ill. 521.

The court erred in giving appellee's eighteenth instruction, telling the jury that as against damages to defendants' road or property, aside from that taken, they might offset benefits to the entire property. Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.

The court also erred in charging the jury that the defendants could recover no damages by reason of being compelled, in accordance with the statute, to stop their trains at the proposed crossing, and that no damages could be awarded by reason of any annoyance, damage, delay or expense caused by being compelled to stop, or for the increased danger of collisions. Lake Shore and Michigan Southern Ry. Co. et al. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21.

Messrs. WORTHINGTON & PAGE, for the appellee:

This court has no jurisdiction of this appeal. Jurisdiction of subject matter can not be conferred by consent. Dunn v. Rogers, 4 Gilm. 131; Randolph County v. Ralls, 18 Ill. 29; Leigh v. Mason, 1 Scam. 249; Peak v. People, 71 Ill. 278.

The expense of stopping and starting appellants' trains is not a proper element of damages. The crossing does not compel them to stop their trains, but the State law does. This law is a mere police regulation, liable to repeal or modification at any session of the General Assembly. Lake Shore and Michigan Southern R. R. Co. v. Cincinnati, Sandusky and Cleveland R. R. Co. 30 Ohio St. 604; Boston R. R. Co. v. Old Colony R. R. Co. 3 Allen, 142; Old Colony R. R. Co. v. Plymouth, 14 Gray, 115; Massachusetts R. R. Co. v. Boston R. R. Co. 121 Mass. 124; Boston R. R. Co. v. Old Colony R. R. Co. 12 Cush. 605; Eastern R. R. Co. v. Boston R. R. Co. 111 Mass. 125.

The damages from the increased danger of collisions in consequence of a crossing, are too conjectural, speculative and uncertain. Jones v. Chicago and Rock Island R. R. Co. 68 Ill. 380; Eberhart v. Chicago, Milwaukee and St. Paul R. R. Co. 70 Id. 347; Page v. Chicago, Milwaukee and St. Paul R. R. Co. Id. 324; Slater v. Burlington and Mt. Pleasant Plank Road Co. 1 Iowa, 393; Henry v. Dubuque R. R. Co. 2 Id. 300.

The true test upon the question of damages is, how is the market value of the whole affected? If it is not decreased beyond the actual value of the part taken, there is no present pecuniary damage. Page v. Chicago, Milwaukee and St. Paul R. R. Co. 70 Ill. 324; Haslam v. Galena and Southwestern R. R. Co. 64 Id. 353; Eberhart v. Chicago, Milwaukee and St. Paul R. R. Co. 70 Id. 347; Edmunds v. Boston, 108 Mass. 544; Searle v. L. and B. R. R. Co.63 Pa. St. 93; Park Comrs. v. Dunlevy, 91 Ill. 49; Lafayette R. R. Co. v. Winslow, 66 Id. 219.

It was competent to give in evidence the plans of the road, in order to show there would be no obstruction to the use of the elevator. Jacksonville and Havana R. R. Co. v. Kidder, 21 Ill. 131; St. Louis, J. and C. R. R. Co. v. Mitchell, 47 Id. 165; Peoria and Rock Island R. R. Co. v. Birkett, 62 Id. 332; City of Elgin v. Eaton, 83 Id. 535; Hyde Park v. Andrews, 87 Id. 229.

The same rule governs here as in condemnation by a telegraph line. The fee is not taken, and only an easement for the purposes for which condemnation is sought. Lockie v. Mutual Union Tel. Co. 103 Ill. 401.

Proof that petitioner is a de facto corporation is all that is required. McAuley v. Columbus, Chicago and Indiana Central Ry. Co. 83 Ill. 348.

The introduction of the charter and proof of user are sufficient to prove the existence of a corporation under the plea of nul tiel corporation, when the corporation is collaterally attacked. Mendota v. Thomson, 21 Ill. 197; Hamilton v. Carthage, 24 Id. 22; Tisdale v. Town of Minonk, 46 Id. 9; Mitchell v. Deeds, 49 Id. 416; Kettering v. Jacksonville, 50 Id. 39; Meeker v. Chicago Cast Steel Co. 84 Id. 276; Utica Ins. Co. v. Tilman, 1 Wend. 555; Graves v. Bank of Mississippi, 7 Eng. (Ark.) 769; Bank of Manchester v. Allen, 11 Vt. 302; Reynolds v. Myers, 51 Id. 44.

It is a general rule that the existence de jure of a corporation acting as such can not be questioned collaterally. State v. Carr, 5 N. H. 367; Thompson v. Candor, 60 Ill. 244; Rice v. R. I. and A. R. R. Co. 21 Id. 93; Tarbell v. Page, 24 Id. 46; Baker v. Backus, Admr. 32 Id. 79.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee, the Peoria and Farmington Railway Company, filed petitions for the purpose of procuring the right of way across the tracks and grounds of the Peoria and Pekin railway, and two other companies. The cases were consolidated, and tried as one by the court and a jury. A verdict was found for $1800 damages. A motion for a new trial was entered, overruled, and an order entered under the statute. The defendants thereupon bring the case to this court by appeal, and seek a reversal.

The first question presented and urged is, that this court has no jurisdiction to hear the case; that the appeal should have been taken to the Appellate Court; that there is neither a freehold nor a franchise involved; that the condemnation only confers an easement to use the property condemned for corporate purposes during the existence of the corporate body; that when the body ceases to exist the easement terminates. In answer to this objection it is only necessary to refer to the 12th section of the Eminent Domain act, which in express terms gives an appeal; and in the case of Kankakee and Seneca R. R. Co. v. Straut, 101 Ill. 653, it was held that nothing in the Practice act has taken away the appeal to this court, as given by that section. That disposes of this objection.

It is next insisted that the petitioning company failed to prove a regular and legal organization under its charter. It obtained its charter in March, 1869, and it is insisted it was required to prove that it had complied with all the requirements of its charter within the period limited by section 2 of article 11 of our constitution, which provides that all charters then existing under which an organization shall take place, or shall not be in operation within ten days from the time the constitution took effect, should thereafter have no validity or effect whatever; that inasmuch as the charter of appellee was granted before that time, it should have been shown that an organization was had within the time thus limited,--in other words, that appellee was a corporation de jure. On the other hand it is claimed that under the plea of nul tiel corporation the proof of a corporation de facto answers the plea. The general rule is, that in all collateral proceedings the introduction of the charter, and proof that the company is exercising the franchises granted, are sufficient. The evidence in this case was therefore sufficient to authorize petitioner to proceed to condemn the right of way.

But it is said that this is not a collateral proceeding. This is a misconception. The suit was brought to acquire the right of way on which to place the company's tracks. It is true this was an exercise of a franchise contained in the charter, and the same is true when the company sues on a contract, or for a trespass to its property. The right to sue and defend suits is a franchise conferred by the charter.

It is, however, urged that the case of Allman v. Havana, Rantoul and Eastern R. R. Co. 88 Ill. 521, holds a different doctrine; that in that case it was held, in a suit on a subscription for stock to the company, the defendant could interpose as a defence that the requisite amount of stock had not been subscribed to authorize the company to collect assessments on subscriptions. That decision was under the general Railroad law, and this is under a special charter. This special charter, by the fifth section, fixes the amount of capital, and authorizes an organization when $10,000 is subscribed and ten per cent is paid in, whilst under the general law an organization can not be had until the whole of the capital stock is subscribed. If this does not distinguish that case from this, it must be limited to cases arising under the general Railroad law, or must be overruled, as on more mature reflection we are convinced it is repugnant to the general doctrine applicable to cases like the present. There was, in addition to the charter, evidence of user of the franchises granted by the charter, and that was sufficient to authorize this proceeding.

It is insisted that the court erred in giving appellee's instructions. This is appellee's sixth instruction:

“The court instructs you that respondent railway companies can not recover any damages against the petitioner in this case on account of having to stop and start their respective trains at the proposed crossings of the different railroad tracks, in order to comply with the law of the State, and the jury will find no damages against the petitioner on account of any annoyance, damage, delay or expense caused simply by so being compelled by law to stop before passing any of the proposed crossings.”

Appellants claim that this instruction misstates the law, and the jury were misled by it. The law requiring trains to stop before reaching and crossing another road, is a police regulation, and may be maintained or repealed at the pleasure of the legislature. No one can say it is permanent, or how long it may continue. It is subject to repeal at any session of the General Assembly. It would therefore be mere matter of conjecture as to what, if any, damages would be sustained by appellants for the delay, inconvenience and trouble produced by complying with...

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