Chicago, B.&Q.R. Co. v. Cavanagh

• Decision Date: 08 June 1917
• Docket Number: No. 11294.,11294.
• Citation: 278 Ill. 609,116 N.E. 128
• Court: Illinois Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. CAVANAGH et al.

278 Ill. 609

116 N.E. 128

CHICAGO, B. & Q. R. CO.

v.CAVANAGH et al.

No. 11294.

Supreme Court of Illinois.

April 19, 1917.

Rehearing Denied June 8, 1917.

Appeal from Circuit Court, Henry County; Emercy C. Graves, Judge.

Suit by the Chicago, Burlington & Quincy Railroad Company against Marie T. Cavanagh and others. From an order dismissing the petition, petitioner appeals. Reversed and remanded, with directions.Robert C. Morse and Charles E. Sturtz, both of Kewanee, and Fred H. Hand, of Springfield (Chester M. Dawes and J. A. Connell, both of Chicago, and J. C. James, of Aurora, of counsel), for appellant.

Nels F. Anderson, Thomas Welch, and John T. Cummings, all of Kewanee, and Henry Waterman, of Geneseo, for appellees.

CARTWRIGHT, J.

The appellant, the Chicago, Burlington & Quincy Railroad Company, owning and operating a railroad between and through the cities of Kewanee and Galva, in Henry county, filed its petition in the circuit court of that county by which it alleged that on January 19, 1916, the State Public Utilities Commission, after notice to the petitioner and investigation of the existing conditions, found that the public convenience and safety required a relocation of the petitioner's railroad tracks between Kewanee and Galva, and ordered the petitioner to relocate its tracks so that the center line of the northerly main track should follow a certain course particularly described in the order, across lands in township 14 north, range 4, among which were lands of the appellees; that the petitioner should carry the highway between section 26 and 27 and the highway between section 24 and 13 over and across its tracks on viaducts or bridges of steel, or steel and cement, or other suitable fireproof bridge material, and should carry its tracks over the highway between sections 23 and 24 by a bridge or viaduct of steel, or steel and cement, or other suitable fireproof bridge material; that the petitioner should make such changes in the location of its existing right of way as might be necessary to comply with the order, and should acquire, either by purchase or the exercise of the right of eminent domain, whatever property might be necessary for the purpose, and should carry out the order within 12 months at its own expense and cost; that for the purpose of complying with the order it was necessary to acquire a right of way across the lands of the appellees, and that the petitioner had been unable to agree with them, or any of them, on the compensation to be paid to them for their respective interests in the premises. The appellees were made defendants to the petition, and it prayed that the compensation to be paid to them for their respective interests in the premises should be ascertained and determined in the manner provided by law. A demurrer to the petition was overruled, and numerous motions for the abatement of the suit and the dismissal of the petition were made and overruled, and the cause was set for hearing with a jury to determine the amount of compensation to be paid to the defendants. The cause coming on for trial, the court set aside the previous orders denying motions to dismiss the petition, by which it had been held that the order of the State Public Utilities Comission the order of the State Public Utilities Commission by the exercise of the power of eminent domain, the new right of way specified in the order of the State Public Utilities Commission, and the court again considered the eleventh paragraph of the motion previously filed, which had been denied. That paragraph was as follows:

‘Eleventh. These defendants further deny that said purported order conferred upon said petitioner any authority whatsoever to institute or prosecute these proceedings.’

The court then entered an order, finding that the petitioner had, neither by the law creating the State Public Utilities Commission nor by any order made by the Commission, acquired any right or power to proceed by eminent domain to acquire the property described in the petition, sustaining the said eleventh paragraph and dismissing the petition at the petitioner's cost. The petitioner appealed, assigning for error the sustaining of the eleventh paragraph and finding that the order of the State Public Utilities Commission gave the petitioner no right or power to maintain the action and dismissing the petition.

The petition alleged that the petitioner owned and operated a railroad, and that was a sufficient averment that its railroad was a public utility within the jurisdiction of the State Public Utilities Commission. The arguments against the right to maintain the action are that the Public Utilities act does not confer jurisdiction on the State Public Utilities Commission to require the relocation of existing railroad rights of way, and that the defendants were neither notified to be present at the hearing before the Commission nor was any certified copy of the order served on them, so that they might appear before the Commission and have a hearing on evidence as to the reasonableness of the order, and, upon failing to have the order modified or set aside, might appeal to the circuit court of Sangamon county, and in case the order was confirmed, prosecute a further appeal to this court.

Section 50 of the Public Utilities Act authorizes the Commission, after a hearing or upon its own motion or upon complaint, to make and serve an order directing that additions, extensions, repairs, improvements or changes shall be made in any existing plant, equipment, apparatus, facilities, or other physical property of any public utility which ought reasonably to be made to promote the security or convenience of the employés or the public or in any other way to secure adequate service or facilities. Section 58 of the act prohibits future grade crossings of railroad tracks without first securing the permission of the Commission, and gives the Commission power, after a hearing, to alter or...