Chicago, B.&Q.R. Co. v. City of Chicago

• Decision Date: 31 March 1894
• Citation: 149 Ill. 457,37 N.E. 78
• Court: Illinois Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. CITY OF CHICAGO.

149 Ill. 457

37 N.E. 78

CHICAGO, B. & Q. R. CO.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from circuit court, Cook county.

Petition for condemnation brought by the city of Chicago against the Chicago, Burlington & Quincy Railroad Company. There was judgment of condemnation. Defendant appeals. Affirmed.

Herrick & Allen, for appellant.

John S. Miller and Charles C. Gilbert, for appellee.

MAGRUDER, J.

This is a condemnation proceeding instituted in pursuance of an ordinance passed by the common council of the city of Chicago for the purpose of opening and widening Rockwell street, from West Eighteenth street to West Nineteenth street, across the track and right of way of the appellant company. The questions raised by the assignment of error, and growing out of the admission and exclusion of testimony and the giving and refusal of instructions by the court below, are the same questions which have been passed upon in the following cases recently decided by this court: Illinois Cent. R. Co. v. City of Chicago, 138 Ill. 453, 28 N. E. 740;Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109; and Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 586, 30 N. E. 1044.

It is claimed, however, by counsel for appellant, that the railroad company in this case owns the fee of the ground at the point where it is proposed to extend the street across the right of way, and the tracks located thereon, and that for this reason the court below erred in refusing to admit certain testimony in regard to value. Counsel introduced in evidence deeds from private owners conveying to the company certain portions of its right of way, including the portion sought to be crossed by the street, and then proposed to prove the market value of the portion thus crossed, for sale or use for any lawful purpose, in case the tracks should be removed. Where a city council, under the power conferred by paragraph 89 of section 1 of article 5 of the city and village act, extends a street across railroad tracks or right of way, it does not condemn the land of the railroad company, nor prevent its use of the tracks and right of way. Hence, the value of the land embraced within the crossing is not the measure of just compensation for such interest as may be taken. The measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for the purposes of a street, such use for the purposes of a street being exercised jointly with the use of the companies for railroad purposes. In other words, the company is to be compensated for the diminution in its right to use its tracks caused by the existence and use of the street. Even the cases relied upon by counsel as holding that the company is entitled to damages for fences, signboards, cattleguards, etc., concede that the value of the land is not a legitimate element of compensation when a highway or street is laid across a railroad, because the owner of the railroad is not, as the owner or land ordinarily is, excluded from the beneficial use of the property. If the value of the land is not a legitimate element of compensation, its market value for sale at the termination of the existing use, and its market value for some other use to which it may be adapted, are also excluded. Hence, we do not regard it as material whether the right of way is owned in fee by the company, or has been obtained by condemnation, so as to leave the fee in the former owner, as required by the present constitution of the state. Const. § 13, art. 2 (1 Starr & C. St. p. 105); Elliott, Roads & S. pp. 170, 171; Pierce, R. R. p. 193; 6 Am. & Eng. Enc. Law, p. 554; Boston & A. R. Co. v. Village of Greenbush, 52 N. Y. 510. The contention of counsel is that the portion of the right of way over which the city proposes to extend the street was subject to sale and use for every lawful purpose, and that by the opening of the street its salable value was practically destroyed, and appellant was limited to a narrow and restricted use, which might at any time become wholly valueless. The correctness of this contention does not follow from the fact that the part of the right of way which embraces the proposed crossing was acquired by conveyance, rather than by condemnation. A railroad company can only acquire land, whether by voluntary purposes or otherwise, for railroad purposes, as defined in its charter. It does not hold land, as does the ordinary owner, with the right of using it for any purpose to which it may be adapted, or with the right to sell it at the highest price which it may bring in the market. Its capacity to acquire or hold lands is not general, like that of a natural person, but is limited to the uses of the railroad business. Being a creature of law, it possesses only those powers which are conferred upon it by its charter, either expressly, or as incidental to the objects of its organization. Railroad Co. v. Brownell, 24 N. Y. 345;Rumsey v. Railroad Co., 114 N. Y. 423, 21 N. E. 1066;Railroad Co. v. Aldridge, 135 N. Y. 83, 32 N. E. 50. In this case the descriptions of the strips of land conveyed to the appellant, as set forth in the conveyances introduced in evidence, show that the strips were purchased for railroad right of way, and they have been ever since so used. Where a railroad company has once exercised the power to determine the location of its road, that power is exhausted. It cannot change the location, without legislative authority, after it has exercised its discretion as to the selection of the route of its road between certain fixed points. Illinois Cent. R. Co. v. People, 143 Ill. 434, 33 N. E. 173. It is manifest that the appellant is restricted in its use of the right...