Illinois Cent. R. Co. v. Chicago

• Decision Date: 26 September 1887
• Citation: 13 N.E. 140,122 Ill. 473
• Court: Illinois Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. CHICAGO, B. & N. R. CO.

122 Ill. 473

13 N.E. 140

ILLINOIS CENT. R. CO.

v.CHICAGO, B. & N. R. CO.

Supreme Court of Illinois.

September 26, 1887.

Appeal from circuit court, Jo Daviess county; WM. BROWN, Judge.

CRAIG and SHOPE, JJ., dissenting.

R. H. McClellan

and John N. Jewett, (B. F. Ayer, of counsel), for appellant.

Chas. M. Osborn, M. D. Hathaway, and Samuel A. Lynde, for appellee.

MULKEY, J.

By the present proceeding, the Chicago, Burlington & Northern Railroad Company seeks to condemn for railroad purposes certain real estate in Jo Daviess county, belonging to the Illinois Central Railroad Company, the appellant herein. That part of the land sought to be taken which gives rise to the most serious question involved in the present controversy consists of three strips of unequal width running longitudinally with and constituting a part of so much of appellant's right of way as lies between the rocky bluffs and the eastern bank of the Mississippi river between Portage Curve and East Dubuque. Appellant derives title to part of this land through the act of congress of the twentieth of September, 1850, popularly known as the ‘Illinois Central Railroad Grant.’ The part of the right of way thus acquired is 200 feet wide. The remainder of it, having been acquired in pursuance of the statute, is consequently but 100 feet wide. The track of appellant is laid in the center of its right of way, and the part of it proposed to be taken by appellee is all that part of the westerly half which lies eight feet or more west of the center line of the track. This would leave but about two feet between passenger cars passing each other on the two roads. As the grant from the government to the state just referred to, and through which appellant derives title to a part of the right of way proposed to be taken, was made upon the express condition that the appellant's road and branches ‘should be and remain a public highway for the use of the United States, free from toll or other charge upon the transportation of any property or troops of the United States,’ and that the United States mail should at all times be transported thereon under the direction of the post-office department; and as appellant's defense to the proceeding is partly based upon the hypothesis that the whole of its right of way is indispensable to the discharge of the duties which it owes to the government under said grant,-it is contended that the present suit necessarily involves a federal question, which the appellant has the right to have passed upon and determined by the federal courts.

Acting upon this view of the law, the appellant applied to the court below for a transfer of the cause to the circuit court of the United States. This application having been denied, the appellant then filed therein a written motion to dismiss the petition as to each of the parcels of land in question, setting forth the grounds of the motion in numerical order, the fourth of which we think sufficiently covers the question thereby sought to be raised, and is as follows: ‘(4) Because the plaintiff has located its railroad longitudinally for a long distance, to-wit, the distance of ten miles and upwards, within defendant's right of way, and the several parcels of land described in plaintiff's petition form part of said right of way, and are already devoted to public use by respondent, and are necessary to such use, and there is no necessity that plaintiff's said railroad should be located within said right of way.’ This motion, having also been overruled, was renewed after the evidence was all in, and was again overruled. The jury to whom the cause was submitted, after having been formally charged in respect to the law, returned into court a verdict fixing appellant's compensation and damages at $40,000, upon which the court rendered final judgment, and the defendant appealed. Numerous questions are presented by the record which have been ably and exhaustively discussed by counsel on both sides; yet, in the view we have taken of the case, it is not deemed necessary nor indeed proper to consider but two of them: (1) Did the court below err in refusing to transfer the cause to the United States circuit court? (2) Did the court err in refusing to dismiss appellee's petition?

Being of opinion that the second question must be answered in the affirmative, which will necessarily lead to a reversal of the judgment, it will subserve no good purpose to enter upon a discussion of the other. Suffice it therefore to say that, upon the authorities cited in the briefs and for the reasons assigned by appellee's counsel, we are of opinion the court ruled properly in denying the application to transfer the cause to the United States court. In considering the propriety of the ruling of the court in refusing to dismiss the petition either before or after the evidence was in, we do not deem it necessary to enter into an inquiry as to the legal status of appellee for the purpose of determining whether it is such a body as might, under the constitution and laws of the state, condemn property for the construction and maintenance of its projected road. For the purposes of the conclusion reached it may be conceded that it is.

The only question we shall consider is whether the property sought to be condemned is subject to be taken by appellee for the purposes specified in the petition? That the legislature of the state might, subject to the conditions imposed by the constitution, take the property for the purposes in question, we have no doubt. And we think it equally clear that the legislature might, by a general law manifesting such intention, authorize one railroad company to condemn a part of the right of way of another to the extent and for the uses proposed in this case; but without such legislative authority or enabling act it is manifest the taking of it would be unauthorized. This is conceded. Such being the case, the question resolves itself into this: Is there any existing legislative authority for taking property, circumstanced as this is, for the purposes and in the manner proposed? If such authority exists, it is to be found only in Rev. St. c. 114, §§ 17, 19. Said sections, so far as they have any special bearing upon the present inquiry, are as follows:

‘Sec. 17. If any such corporation shall be unable to agree with the owner for the purchase of any real estate required for the purposes of its incorporation, or the transportation of its business, or for its depots, station buildings, machine and repair shops, or for right of way or any other lawful purpose connected with or necessary to the building, operating, or running of said road, such corporation may acquire such title in the manner that may be now or hereafter provided for by any law of eminent domain.’

‘Sec. 19. Every corporation formed under this act shall, in addition to the powers hereinbefore conferred, have power: First. To cause such examination and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route; and for such purpose may enter upon the lands or waters of any person or corporation, but subject to responsibility for all damages which shall be occasioned thereby. * * * Fourth. To lay out its road, not exceeding one hundred feet in width, and to construct the same, and, for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the railway. * * * Fifth. To construct its railway across, along, or upon any stream of water, water-course, street, highway, plankroad, turnpike, or canal, which the route of such railway shall interest or touch. * * * Sixth. To cross, intersect, join, and unite its railways with any other railway before constructed, at any point in its route

, and upon the grounds of such other railway company, with the necessary turnouts, sidings, and switches, and other conveniences, in furtherance of the objects of its connections; and every corporation whose railway is or shall be hereafter intersected by any new railway shall unite with the corporation owning such new railway in forming such intersections and...