Chicago v. Joliet

• Decision Date: 31 March 1883
• Citation: 105 Ill. 388,1882 WL 14344,44 Am.Rep. 799
• Parties: CHICAGO AND ALTON RAILROAD COMPANYv.JOLIET, LOCKPORT AND AURORA RAILWAY COMPANY.
• Court: Illinois Supreme Court

105 Ill. 388

1882 WL 14344 (Ill.)

44 Am.Rep. 799

CHICAGO AND ALTON RAILROAD COMPANY

v.JOLIET, LOCKPORT AND AURORA RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.Rehearing denied March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Will county; the Hon. BENJAMIN OLIN, Judge, presiding.

Mr. GEORGE S. HOUSE, for the appellant, made the following among other points in his argument:

Appellant can not, by any agreement with appellee, shift the burden the law imposes on it, of keeping its tracks at the point of intersection in a safe and secure condition. St. Louis, Jacksonville and Chicago R. R. Co. v. Springfield and Northwestern R. R. Co. 96 Ill. 274.

The expense and loss thus created by the crossing is not for appellant's benefit, and it ought not to be charged with it. If appellant is entitled to be paid this sum in money, it is a vested right, of which it can not be deprived except on compensation. The compensation given it by the law can not be liquidated or satisfied in anything but money. Appellee can not compel appellant to accept a mere promise in lieu of money. If appellee fails to comply with the terms of its stipulation, it simply constitutes a cause of action, and nothing more. Appellee may not be able to perform the agreement, or the performance tendered or made by appellee may not be such as appellant shall regard as adequate, suitable and proper. In such case, where is appellant's remedy? It is the duty of the petitioner seeking to condemn a right of way over the right of way and tracks of the defendant company, to pay to the defendant a sufficient sum of money to enable the defendant to place and maintain its tracks at the point of crossing in as safe a condition, as nearly as the nature of the case will permit, as they were before the crossing was made. Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 Ill. 144; St. Louis, Jacksonville and Chicago R. R. Co. v. Springfield and Northwestern R. R. Co. 96 Id. 275.

The additional delays and inconvenience to appellant in being compelled to stop before reaching the proposed crossing, are proper to be considered as an element of damage. By making the new crossing, appellant is brought under the statute requiring such stoppage, etc., not for its benefit, or on its request for the benefit of the petitioner, and upon its motion. St. Louis, Jacksonville and Chicago R. R. Co. v. Springfield and Northwestern R. R. Co. 96 Ill. 275; Old Colony and Fall River R. R. Co. v. County of Plymouth, 14 Gray, 155; Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21.

Messrs. GARNSEY & KNOX, for the appellee:

The stipulation filed with proof that it was the act of the corporation, and thus binding on it, was proper. It removed from the case contingent and uncertain elements, which might amount to a legal damage, and might not. J. and S. R. R. Co. v. Kidder, 21 Ill. 131; St. Louis, Jacksonville and Chicago R. R. Co. v. Mitchell, 47 Id. 165; Elgin v. Eaton, 83 Id. 537; Hyde Park v. Andrews, 87 Id. 230; Hayes v. Ottawa, Oswego and Fox River Valley R. R. Co. 54 Id. 375; Peoria and Rock Island R. R. Co. v. Birkett, 62 Id. 335.

The principle of the following cases is in accordance with the filing of this stipulation, as well as the cases before cited. They decide that net, and not gross damage, is to be paid for, if we may use such an expression. Curry v. Mt. Sterling, 15 Ill. 322; Peoria, Pekin and Jacksonville R. R. Co. v. Laurie, 63 Id. 264; Mix v. Lafayette, Bloomington and Mississippi Ry. Co. 67 Id. 319; Page v. Milwaukee and St. Paul Ry. Co. 70 Id. 324; Chicago and Pacific R. R. Co. v. Francis, Id. 238; Keithsburg and Eastern R. R. Co. v. Henry, 79 Id. 294; Hyde Park v. Dunham, 85 Id. 570; Hyslop v. Finch, 99 Id. 171.

Appellant is not entitled to recover damages for inconvenience caused by being obliged to stop its trains at the proposed crossings, nor for an increase in the expense of operating its road, caused thereby, such stop being made in obedience to the law. Sess. Laws, 1871-2, p. 634, title, and sec. 1; Rev. Stat. 1874, p. 8, title, p. 809, sec. 12; Repealing Statute, Rev. Stat. 1874, sec. 351; Cooley on Const. Lim. (2d ed.) 573-580; Thorpe v. B. and R. R. R. Co. 27 Vt. 140; G. and C. U. R. R. Co. v. Loomis, 13 Ill. 548; Ohio and Mississippi R. R. Co. v. McClelland, 25 Id. 141; Munn v. People, 69 Id. 80; Ruggles v. People, 91 Id. 256.

The foregoing cases are on the general subject of the exercise of the police power of the State. The following are all upon the precise question here involved, and the last cited is precisely like the present one: Fitchburg R. R. Co. v. B. and M. R. R. Co. 3 Cush. 58; Davidson v. Same, Id. 105; Parker v. Same, Id. 113; Old Colony R. R. Co. v. Plymouth, 14 Gray, 155; Grand Junction R. R. Co. v. Commissioners of Middlesex, Id. 553; Bridgeport v. New York and New Haven R. R. Co. 36 Conn. 255; Lake Shore and Michigan Southern R. R. Co. v. C. S. and C. R. R. Co. 30 Ohio St. 604.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

This proceeding was commenced under the Eminent Domain act of 1872, on the petition of the Joliet, Lockport and Aurora Railway Company, to condemn the right of way for its own track across the right of way and track of the Chicago and Alton Railroad Company. The width of the right of way desired, and the angle at which petitioner's road will cross defendant's road at the point indicated, are stated with sufficient certainty in the petition to give a clear understanding of the manner defendant's road-way will be affected. So, also, the use petitioner proposes to make of the strip of land sought to be condemned is stated to be, to build its railroad thereon, and operate its main tracks over and across the same, and it is then added, petitioner does not desire to appropriate and use such strip of land to its exclusive use, but desires to use the same without prejudice to the rights of, and use thereof by, defendant, not inconsistent with the use thereof by petitioner for its main track or tracks. The defendant corporation answered the petition, and then filed a cross-petition. As the case is presented in this court it will not be necessary to state the contents of either of them. The case was submitted to a jury, who, after viewing the premises and hearing the evidence, assessed defendant's damages at $150, and for which judgment of condemnation was rendered.

The first objection insisted upon to the regularity of the proceedings in the trial court arises on the admission by the court, over the objection of defendant, as evidence, a stipulation, regularly signed by petitioner, of which, omitting the date and signatures, the following is a copy: “In the above entitled cause, now pending in the county court, * * * and about to be laid before a jury impanelled for that purpose by the court, it is hereby expressly stipulated by said petitioner, the Joliet, Lockport and Aurora Railway Company, that it will and shall, at its own expense, put in, and thereafter maintain in suitable and proper repair, the frogs and crossing across two main tracks of the defendant; that this stipulation shall be binding on the successors and assigns of said petitioner so long as a grade crossing shall be maintained at the crossing, the right of way for which is being condemned herein.” Notwithstanding this covenant on the part of the petitioning corporation, defendant offered to prove what would be the cost and expense necessary to keep a crossing on its railroad, at the point where it is proposed to make this crossing, in proper and suitable repair, including frogs, rails, or other appliances necessary to a proper railroad crossing, and the necessary renewals. The court sustained an objection to the giving of the proposed testimony, for the reason petitioner had stipulated to construct and maintain the crossing in proper repair at its own expense, and hence defendant could not account such expense as an element of damages, and in its charge the court made its instructions to the jury conform to this view of the law. If it shall be held the agreement of petitioner to construct, and thereafter maintain, at its own expense, a proper and suitable crossing at the point in question, is a valid obligation, enforceable against petitioner, its successors and assigns, and was properly admissible in evidence, it follows, as a matter of course, the decisions of the court in rejecting the evidence tendered and in giving instructions in respect to the same matter, were entirely correct. That the stipulation was executed in a manner to be obligatory on petitioner, its successors and assigns, is so manifest that no point is made against it in that respect, and under the previous decisions of this court no reason is perceived why it was not admissible in evidence.

Since the decision in the case of Jacksonville and Savanna R. R. Co. v. Kidder, 21 Ill. 131, the practice has always been, in condemnation cases, to admit in evidence the plans of the work proposed to be done or the land taken, otherwise it could not be so well known how the projected improvement would affect the residue of the property. It is practicable, of course, to so construct a public improvement as to make it of greater or less damage to the land over which it passes, and the extent of such injury can not be justly estimated unless the character of the work to be done shall be first ascertained from plans and specifications that shall be thereafter adhered to by the corporation condemning the land to its use. In the case of St. Louis, Jacksonville and Chicago R. R. Co. v. Mitchell, 47 Ill. 165, it was held the cost of erecting and maintaining the fences along the track was a proper element of damages in condemning land for railroad purposes, and accordingly evidence offered tending to show the company had contracted for the building of the fence through the owner's land...