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

• Citation: 72 N.E. 219,212 Ill. 103
• Court: Supreme Court of Illinois
• Decision Date: 24 October 1904
• Parties: CHICAGO, B. & Q. R. CO. v. PEOPLE ex rel. GRIMWOOD et al.

212 Ill. 103

72 N.E. 219

CHICAGO, B. & Q. R. CO.

v.PEOPLE ex rel. GRIMWOOD et al.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, Kendall County; Geo. W. Brown, Judge.

Petition for mandamus, on the relation of one Grimwood and others, against the Chicago, Burlington & Quincy Railroad Company. The writ was ordered as prayed on demurrer to the petition, and defendant appeals. Affirmed.Hopkins, Dolph & Scott (Chester M. Dawes, of counsel), for appellant.

Raymond & Newhall, for appellees.

Appellees, the drainage commissioners of Drainage District No. 1 of the town of Bristol, Kendall county, filed their petition for a writ of mandamus directed to appellant, requiring appellant to construct, enlarge, deepen, and widen the waterway over and acrosss the right of way of appellant, and to construct a railroad bridge across the waterway so widened and deepened along appellant's railroad. Appellant demurred to the petition. The demurrer was overruled, and appellant elected to stand by its demurrer, and the writ was ordered as prayed. From this order appellant appealed.

Appellees are organized under the farm drainage act, and have adopted the bed of Rob Roy creek as the main drain for the lands of the district. The district includes about 2,000 acres of land, the majority of which is swamp and slough land, which lands, owing to overflow and the continuous presence of water, have, up to the time of the organization of the district, been unfitted for cultivation. Rob Roy creek runs in a southeasterly course through the district and across the appellant's railroad, a portion of the district lying upon each side of the railroad. The creek is a natural waterway, and has been, as alleged in the petition, a natural water course for more than 50 years, and is the natural and only outlet for the land included in the drainage district; and the petition alleges that by the proposed system of drainage no water, other than the water that has its natural drainage into Rob Roy creek, will be carried through the same, and that by the deepening and enlarging of the creek all the lands in said district will be greatly improved, and made good, tillablelands subject to cultivation. The petition further avers that appellant is a railway corporation doing business in this state, with corporate power to build, construct, operate, and maintain a railroad at and in the township and county aforesaid; that more than 40 years ago appellant constructed a bridge or culvert across Rob Roy creek of the length of 12 feet and of the width of 30 feet, and has continuously owned and used the same from thence hitherto, and that in the construction of said bridge appellant sank and placed in the said Rob Roy creek huge wooden timbers and stone, which it has ever since kept and maintained there, thereby preventing the deepening of said creek by petitioners, as aforesaid, except by the removal of said timbers and stone, and which, if removed, would result in the destruction of said bridge; that the channel so left under the said bridge has, from the time of its construction to the present time, remained at the depth of three feet, and that it is now insufficient to allow the flow of water in the ditch or drain which is proposed to be dug, built, and constructed by the petitioners in their capacity as drainage commissioners; that the said ditch or proposed drain is to be an open ditch as the main waterway for said system of drainage. The petition further shows that on the 24th of June, 1903, appellees gave notice to appellant to construct or enlarge the opening at the intersection of its said railroad with Rob Roy creek, for the uses and purpose of said drain, so as to conform and be equal in size to the same, and of the following dimensions: Width, 23 feet; depth, 9 1/2 feet below the surface of the ground underneath the bridge or culvert at the place of intersection; and by the petition a copy of the notice is made an exhibit thereto and a part thereof. The notice referred to is addressed to the appellant, and is as follows:

‘You are hereby notified that a bridge is deemed necessary to be made across the right of way of your company at a place or point in section 17, in the said town of Bristol, where the right of way of your said company is crossed or intersected by what is commonly known as the ‘Rob Roy Ditch,’ said construction or improvement to be for the use or waterway of a combined system of drainage being constructed in the vicinity under the charge and direction of the drainage commissioners of District No. 1 in the town of Bristol, county of Kendall and state of Illinois, the main ditch of said drainage where it intersects the right of way of your said company at said point being of the width of twenty-three feet and the depth of nine and a half feet, the bridge so to be constructed to be of the width of twenty-three feet in the clear at surface or level of land, and to permit at least sixteen feet in the clear at the bottom of the ditch; and you are hereby required, in pursuance of the statute in such case made and provided, to build and construct such bridge within thirty days from this date.'

The petition avers that the present bridge across the said Rob Roy creek is of the value of $8,000, and that a new bridge of the dimensions required for the accommodation of the ditch as improved will cost not to exceed $13,000, and that 30 days have elapsed since the giving of the notice to appellant, and that appellant has neglected, failed, and refused to construct and enlarge, in accordance with said notice, the opening under said bridge or culvert.

The demurrer was general, with certain special grounds assigned, as follows: First, that the proceeding is repugnant to section 2 of article 2 of the Constitution of the state of Illinois, in that petitioners seek thereunder to deprive this defendant of property without due process of law; second, the statutes under which petitioners are proceeding are repugnant to section 13 of article 2 of the Constitution of the state of Illinois, in that petitioners seek thereunder to take and damage the private property of the defendant for public use without just compensation; third, the statutes under which petitioners are proceeding are repugnant to section 13 of article 2 of the Constitution of this state, in that petitioners seek to take property of defendant, a corporation, and subject the same to the uses and conveniences of petitioners, without an assessment of the damages that will necessarily be sustained by the defendant, and without awarding to the defendant a trial by jury; fourth, the statutes under which the petitioners are proceeding are repugnant to the fourteenth amendment to the Constitution of the United States, in that thereunder the petitioners seek to deprive defendant of property without due process of law; and, fifth, the statutes under which petitioners are proceeding are repugnant to the fourteenth amendment to the Constitution of the United Sates, in that thereunder the defendant is denied the equal protection of the laws.

RICKS, C. J. (after stating the facts).

Of the grounds relied upon by appellees to sustain the writ awarded, are, inter alia, section 40 1/2 of the farm drainage act and section 56 of the levee act.

Section 40 1/2 of the farm drainage act is as follows: ‘The commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or protection of the work, and the cost of the same shall be paid out of the road and bridge tax, or by the railroad company as the case may be: provided, however, notice shall first be given to the road or railroad authorities to build or construct such bridge or culvert, and they shall have thirty days in which to build or construct the same, such bridges or culverts shall in all cases be constructed so as not to interfere with the free flow of water through the drains of the district. Should any railroad company refuse or neglect to build or construct any bridge or culvert as herein required, the commissioners constructing the same may recover the cost and expenses therefor in a suit against said company before any justice of the peace or any court having jurisdiction, and reasonable attorneys' fees may be recovered as part of the cost. The proper authorities of any public road or railroad shall have the right of appeal the same as provided for individual land owners.’ Hurd's Rev. St. 1901, p. 723, c. 42.

Section 56 of the levee act reads: ‘When any ditch or drain or other work of enlarging any channel or water-course is located by the commissioners on the line of any natural depression or water-course, crossing the road of any railroad company where no bridge or culvert or opening of sufficient capacity to allow the natural flow of water of such ditch or water-course, is constructed, it shall be the duty of the commissioners to give notice to such railroad company to construct or enlarge such bridge or culvert or opening in the grade of such road, for such ditch or ditches or other work, of the dimensions named in such notice, within twenty days from the service thereof; and any railroad company neglecting, failing or refusing so to do, shall be liable to any owner of land in such district, for all damages to such land sustained by such neglect or refusal; and shall be liable to such district in the sum of tewnty-five dollars ($25) for each day such company shall have neglected or refused to construct such work, after the time fixed in such notice for constructing the same shall have expired, which damages or penalty may be recovered before a justice of the peace, if within his jurisdiction, or before any court of competent jurisdiction.’ Hurd's Rev. St. 1901, p. 707, c. 42.

Of these acts appellant says that both are repugnant to the various constitutional provisions set forth in its demurrer...