Chicago & N.W. Ry. Co. v. City of Chicago

• Decision Date: 18 January 1892
• Citation: 140 Ill. 309,29 N.E. 1109
• Parties: CHICAGO & N. W. RY. CO. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

140 Ill. 309

29 N.E. 1109

CHICAGO & N. W. RY. CO.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Jan. 18, 1892.

Appeal from circuit court, Cook county; FRANCIS ADAMS, Judge.

Proceeding by the city of Chicago to condemn land of the Chicago & Northwestern Railway Company for a public street. The railway company appeals from a decree awarding it nominal damages. Affirmed.W. C. Goudy, for appellant.

John S. Miller, Corp, Counsel, for appellee.

MAGRUDER, C. J.

This is an appeal from the judgment of the circuit court of Cook county fixing the compensation for property taken and damaged by the city of Chicage for the extension of West Taylor street across the right of way of the Chicago & Northwestern Railway Company and the Chicago, St. Louis & Pittsburgh Railroad Company in that city. The circuit court found that the just compensation to be paid by the city for the extension of the street across the tracks and right of way of the railroad companies was one dollar, and awarded that amount in its judgment. The street is 66 feet wide, and the right of way of the two companies is 100 feet wide. Both companies were made defendants to the original petition for condemnation filed by the city, and entered their appearance. They filed a joint cross-petition, alleging that, in addition to the land to be taken for the opening of the street, they were the owners of land on each side thereof, used by them as a right of way for their tracks, and which would be damaged by the taking of the strip described in the petition for a street. The petition prays that the damage to their business and to their lands not proposed to be taken, and all damages caused by the opening of the street, and taking of the land therefor, be assessed. The cause was tried by agreement before the court without a jury. The appeal is taken by the Chicago & Northwestern Railway Company alone. The elements of damage set up in the cross-petition are that the taking of the land and the opening of the street will interrupt the business of the cross-petitioners, and necessitate the construction by them of approaches to the crossings, the planking of their tracks, the draining of the side crossings and the adjoining land owned by them, the erection of gates at said crossing, and the keeping of a flagman there. It was admitted that the fee of the land described in the petition was in the railroad companies; that the Galena & Chicago Union Railroad Company was incorporated in 1836; that in 1864 that road was consolidated with the Chicago & Northwestern Railway Company under the latter name; and that ‘the road at the proposed crossing had then been constructed by the Galena & Chicago Union Railroad Company.’ The city proved that so much of the railroad right of way, being a strip 100 feet long and 66 feet wide, as it was proposed to use for a street, had no market value for the use of a street subject to the rights of the railroad companies, and was not worth more than one dollar. The companies proved that the effect of opening the street would be to compel them to incur the following items of expense: For grading, $50; planking, $460; gate, $375; power-house, $190; total, $1,075; and, in order to maintain the crossing, the following items of expense: Salary of gate-tender, night and day, $960 per annum; repairs per annum to planking, $76.66; repairs per annum to gate, $25; making a total expense each year of $1,061.66. The proof of the defendants also showed that there were 4 or 5 tracks laid upon the right of way at the point where the street was to cross such right of way, and that about 50 trains passed that point daily. The city did not propose to condemn the land of the railroad companies, nor to prevent the use of the tracks and right of way by such companies. It merely proposed to extend a street across such tracks and right of way. The value of the land where the street was to cross could not, therefore, be the measure of just compensation for property taken in the condemnation proceeding; nor could the value of the use of the property for railroad purposes be the measure of such compensation. So far as the taking of the strip was concerned, the measure of the compensation would be the amount of decrease in the value of the use for railroad purposes which should be caused by the use for the purposes of a street, such use for the purposes of a street being subject to the use of the companies for railroad purposes. We cannot discover that there was any testimony to justify any more than a judgment for nominal damages so far as the taking of property is concerned. Hence the case turns altogether upon the alleged damages to the property not taken, as set up in the cross-petition.

The question is whether, in a case where a city institutes a condemnation proceeding to open or extend a street across a railroad already constructed, the company owning such railroad is entitled to be allowed, as a part of its just compensation, the amount of its expenses in constructing and maintaining the street crossing. Section 8 of ‘An act in relation to fencing and operating railroads,’ approved March 31, 1874, in force July 1, 1874, (2 Starr & C. Ann. St. p. 1927,) is as follows: ‘Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective rights of way, so that at all times they shall be safe as to persons and property.’ It does not appear in this record what the provisions of appellant's charter are, or what were the terms of the ordinance of the city of Chicago under which its predecessor laid its tracks within the limits of that city. It does not appear that such charter did not require it to construct and maintain the crossings of all highways and streets that might be extended across its right of way in the future, or that such ordinance did not impose said requirement as to streets thereafter to be opened in the city. It does appear, however, that its charter was granted, and that its road was built at the point where it is proposed to extend West Taylor street across its right of way, before the act of 1874 was passed, and also before the act of 1872, for the incorporation of cities and villages, was passed. 1 Starr & C. Ann. St. pp. 465, 472. But the power of the city to extend the street across the right of way is not denied; and the cross-petition admits that such extension, when it takes place, will necessitate the construction and maintenance of the street crossing by the railroad company. The company does not refuse to construct and maintain the crossing, nor deny the power of the legislature or city council to require it to do so. It proposes to construct and maintain the crossing, and, if it does so, it can make no practical difference whether it does so because the law so requires, or for some other reason. Hence the case of Railroad Co. v. City of Bloomington, 76 Ill. 447, has no application to the present controversy. In that case the city, by ordinance passed in pursuance of the power conferred by its charter, required the railroad company to make a proper and safe crossing by grading the approaches of the street at the crossing. The company refused to do so. Thereupon the city did the grading and made the crossing, and sued the company for the amount expended for such purpose. It was held that the company was not liable, but it was expressly stated that the question whether the right of way was so far public property that it need not be again condemned where a highway or street crosses it was not presented by the record, and that the question was not presented whether, the city having made the improvement, the company might be required, as a police regulation, to keep it repaired. If, under the authority of the Bloomington Case, appellant is not bound to make the crossing, then why does it ask to be allowed damages in this proceeding for the probable expense of making it? The fact that it asks compensation for such damages is a concession of its intention to make and maintain the crossing, and the presumption is that such intention will be carried into effect because of the requirements of the law upon that subject.

The only question is whether the appellant is bound to construct and mairtain the crossing without compensation, or whether it should have been awarded damages for the expense of such construction and maintenance by the judgment of the court below. Government owes to its citizens the duty of providing and preserving safe and convenient highways. From this duty results the right of public control over highways. Railroads are public highways, and in their relations as such to the public are subject to legislative supervision, though the interests of their shareholders are private property. Every railroad company takes its right of way subject to the right of the public to extend the public highways and streets across such right of way. Lake Shore & M. S. R. Co. v. Cincinnati, S. & C. R. Co., 30 Ohio St. 604. In the separate opinion in Chicago & A. R. Co. v. Joliet, L. & A. Ry. Co., 105 Ill. 388, it was said: ‘Unless, therefore, every railroad corporation takes its right of way subject to the right of the public to have other roads, both common highways and railways, constructed across its track whenever the public exigency might be thought to demand it, the grant of the privilege to construct a railroad across or through the state would be an obstacle in the way of its future prosperity of no inconsiderable magnitude.’ If railroads, so far as they are public highways, are, like other highways, subject to legislative supervision, then railroad companies, in their relations to highways and streets which intersect their rights of way, are subject to the control of the police power of the state,-that power of which this court has said that ‘it may be assumed that...