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

• Decision Date: 03 April 1897
• Citation: 166 Ill. 87,47 N.E. 734
• Parties: CHICAGO, B. & Q. R. CO. v. CITY OF NAPERVILLE.
• Court: Illinois Supreme Court

166 Ill. 87

47 N.E. 734

CHICAGO, B. & Q. R. CO.

v.CITY OF NAPERVILLE.¹

Supreme Court of Illinois.

April 3, 1897

Appeal from circuit court, Dupage county; C. W. Upton, Judge.

Condemnation proceedings by the city of Naperville against the Chicago, Burlington & Quincy Railroad Company and Bernard B. Boecker. From the judgment the railroad company appeals. Reversed.

Hopkins, Thatcher & Dolph, O. F. Price, C. M. Dawes, and H. H. Goodrich, for appellant.

E. N. Gary and John Batten, for appellee.

CRAIG, J.

This was a proceeding in the circuit court of Dupage county, instituted by the city of Naperville against the Chicago, Burlington & Quincy Railroad Company et al., to condemn certain premises for a street across the depot grounds of the railroad company. The object of the proceeding was to lay out and extend Center street, 66 feet wide, from the north line of the depot grounds, south some 317 feet, to the south line of the depot grounds, as shown by a plat in the record. Upon looking into the record it appears that the railroad company has two ‘main tracks running through Naperville. The main portion of its depot grounds at that place is between Washington and Front streets. These streets cross the railroad tracks at right angles. The distance between them is about 550 feet. There are two side tracks, north of the main tracks, which practically parallel the main tracks. The depot building is between the main tracks and the side tracks, and the west end of the building is not far from the center point between Washington street and Front street. Along the side tracks are two grain elevators, buildings for the storage of coal, warehouses, and other buildings, constructed there for the purpose of receiving and discharging freight. On the south side of the main tracks, opposite the depot buildings, is a passenger shed and platform.A passenger walk extends from this passenger shed easterly to Front street and westerly to a point about 100 feet west of the depot building. On the north side of the main tracks is the depot building proper, a building 100 feet in length by 30 feet in width, with a platform and walk around it of from 8 to 10 feet in width. A passenger walk extends from the depot building and platform westerly about 125 feet, and at the west end of this walk is a structure designated in the map (which is made an exhibit in this case) as the ‘Milk Station.’ North of the north side track, and on a line a little west of the depot building, is a building used for the storage of coal, 60 feet in length by 50 feet in width. The proposed street across the main tracks and side tracks of the railroad company comes within about 30 feet of the depot building and within about 20 feet of the depot platform.' The railroad company filed a cross petition, in which it claimed damages to property not taken but damaged by the laying out and opening the street in question. It is set up in the cross petition that the depot grounds comprise some 7 1/2 acres of land, and that the street will pass through the grounds, and cut off that portion west of the proposed street from the depot building. It is also alleged that the lands taken and the lands lying west of the proposed street have been, and are now being, used for unloading and loading merchandise, and for the receipt and discharge of freight. It is also alleged that there is no freight depot at Naperville, and that the lands taken and those west of the depot are peculiarly adapted to the erection of a depot thereon, warehouses, and other railroad structures for railroad purposes, but if the street is laid out the company cannot utilize that portion of the depot grounds west of the proposed street. The cross petition contained other allegations, but it will not be necessary to set them out here. The issues presented by the petition and cross petition were submitted to a jury, and the jury returned a verdict in favor of the railroad company of $150 for property taken and $1 for damages to property not taken. The court overruled a motion for a new trial, and rendered judgment on the verdict.

It is first claimed, on the argument, that the verdict of the jury is contrary to the evidence. As is usual in cases of this character, the evidence introduced by the respective parties is very conflicting. The petitioner introduced some five witnesses, who reside at Naperville, and they unite in testifying that the cash value of the property to be taken for the street subject to the right of the railroad company to use it for railroad purposes was merely nominal, and that the land unaffected by railroad tracks was worth not exceeding $500. On the other hand the railroad company called three or four witnesses who testified that, in their opinion, the damage to the 7 1/2 acres owned by the railroad company, by the extension of the street, was from $3,000 to $3,600, and that the value of the land taken was from $700 to $800. Upon an examination of the evidence it appears that no street or highway has ever been laid out to the railroad station, but all the land south of the depot platform proposed to be taken has been open and used by the public for about 25 years, and on the north of the switch tracks, after passing the coal sheds of Boecker, the land proposed to be taken has also remained open, and has been used by the public. The jury viewed the premises, and saw the location of the main and side tracks, the depot, its location and surroundings. What the jury learned upon an examination of the premises they had the right to consider, in connection with the other evidence, in arriving at the amount of damages to be allowed, and the rule is well settled that the damages awarded by a jury in a condemnation proceeding will not be disturbed where the evidence is conflicting and the jury viewed the premises. Railway Co. v. Lyons, 159 Ill. 576, 43 N. E. 377.It is, however, said that there is no evidence in the record on the question of damages to the property not taken except what was introduced by the defendant. This, was think, is a misapprehension of the record. Two of the witnesses for the petitioner, on their cross-examination, testify to the benefits to result to the railroad company from the opening of the street. John W. Collins, an old resident of Naperville, testified: ‘I have been personally familiar with the C., B. & Q. Depot and the surroundings since my earliest recollection, and also with Center street. The property just south of the tracks and north of Boecker's...