Chicago, N.S.&M.R. Co. v. Chicago Title & Trust Co.

• Decision Date: 24 February 1928
• Docket Number: No. 17049.,17049.
• Citation: 160 N.E. 226,328 Ill. 610
• Parties: CHICAGO, N. S. & M. R. CO. v. CHICAGO TITLE & TRUST CO.
• Court: Illinois Supreme Court

328 Ill. 610

160 N.E. 226

CHICAGO, N. S. & M. R. CO.

v.CHICAGO TITLE & TRUST CO.

No. 17049.

Supreme Court of Illinois.

Feb. 24, 1928.

Commissioners' Opinion.

Petition by the Chicago, North Shore & Milwaukee Railroad Company against the Chicago Title & Trust Company for condemnation of certain land for railroad purposes. Cross-motion by defendant for damages to land not taken. From the judgment, resulting in an award for land taken and no damages, defendant appeals.

Reversed and remanded.

Appeal from Lake County Court; Perry L. Persons, Judge.

Gallagher, Kohlsaat, Rinaker & Wilkinson, of Chicago, for appellant.

Gardner, Foote, Burns & Morrow, of Chicago (William A. Morrow and Walter M. Fowler, both of Chicago, of counsel), for appellee.

PARTLOW, C.

Appellee filed its petition in the county court of Lake county for the condemnation, for railroad purposes, of certain land the legal title to which appeared of record in the name of appellant. Appellant filed a traverse to the petition and also a motion to dismiss, which motion specified various alleged grounds for dismissal. The motion to dismiss was heard and overruled by the court. Appellant then filed a cross-motion claiming damages to adjacent property owned by appellant which was not sought to be taken. A jury trial ensued, which resulted in an award of $26,000 to appellant for the land taken and no damages. A motion for new trial having been made and overruled, judgment was entered by the court upon the verdict and an appeal therefrom perfected by appellant to this court.

One of the grounds assigned on the motion for dismissal of the petition was that Henry F. Norcott, sole beneficiary of the trust of which the Chicago Title & Trust Company was trustee, was a necessary party. The land sought to be condemned was held in trust by appellant under a trust agreement between appellant and Norcott by virtue of which Norcott caused to be conveyed to appellant, as trustee, certain lands, including the land sought to be condemned. This trust agreement contained the following provision:

‘During the existence of the trust created by this trust agreement, the interest of Henry F. Norcott as beneficiary of this trust is hereby declared to be, and at all times shall be, personal property. The interest of Henry F. Norcott as beneficiary at all times shall be governedby the law in respect to personal property, and during the existence of the trust created by this trust agreement Henry F. Norcott, as beneficiary or otherwise, shall have no claim, title, or interest, legal or equitable, in the subdivision lots or any thereof, but only an interest in that propertion of the net avails and proceeds thereof expressly provided to be paid to the manager for the account of Henry F. Norcott under the terms of this trust agreement.’

The title of record was in appellant, and, the trust agreement showing that Norcott's interest under the trust agreement was an interest in personal property and not in real estate, Norcott was not a necessary party. Furthermore, appellant is in no position to raise that question here, as it filed a cross-petition, in which it alleged that ‘the defendant Chicago Title & Trust Company, as trustee, is now, and was at the time of the commencement of this suit and for some time prior thereto, the owner and holder in fee simple’ of the premises described in the petition. Upon the motion to dismiss, appellant contended that appellee had exhausted its power to condemn lands for right of way at the point where appellant's land is located.

The petitioner in this case is a corporation formed by the consolidation of two constituent corporations, namely, the Chicago, North Shore & Milwaukee Railroad Company and the Chicago North Shore & Northern Railroad. The former corporation was organized in June, 1923, and the latter in September, 1923. The two corporations were consolidated under the laws of Illinois in October, 1924, under the same name as the former, the Chicago, North Shore & Milwaukee Railroad Company. The consolidated corporation is the appellee in this case. The consolidation agreement provided that appellee should have and be vested with all and singular the property and the franchises, rights, privileges, and corporate powers of the constituentcompanies. The charter of the Chicago, North Shore & Northern Railroad authorized that company to construct a railroad from the city of Evanston, in the state of Illinois, to a point on the state line between Illinois and Wisconsin and to the city of Chicago, in the state of Illinois. The consolidation agreement recited that the Chicago, North Shore & Northern Railroad was authorized by its charter to construct, and was then engaged in constructing, an electric railroad from Howard and Oakton streets, in the city of Evanston, westerly to a point east of and near the right of way of the Chicago & Northwestern Railway Company, at or near Niles Center, Ill., and thence northerly and generally easterly of and within 200 feet of the right of way of the Chicago & Northwestern Railway Company to or near Five Points, in the township of Shields, Lake county, and thence northerly, describing the route in question to a point near the north limits of the city of Waukegan, where said route connected with the main line of the Chicago, North Shore & Milwaukee Railroad Company. The line thus described is the line in question in this case and is designated in the record as the Skokie Valley Line.

The consolidation agreement also recites that the Chicago, North Shore & Milwaukee Railroad Company held and operated an electric interurban railroad from Wilmette, Ill., to Harrison street, in the city of Milwaukee, Wis., and also owned and operated a branch line extending from Lake Bluff, Ill., to Area, Ill. This branch line is designated in the record as the Libertyville branch. This Libertyville branch runs from, in or, near the village of Lake Bluff, in Lake county, in a westerly direction to the town of Area. The town of Area is now known as Mundelein. The Skokie Valley Line (the one involved in this case) starts from the city of Evanston, runs northerly by way of Niles Center and along the east side of the right of way of the Chicago & Northwestern Railway Company and across the Libertyville branch of appellee's railroad at substantially right angles at the point where the property involved in this case is located. At the point where the Skokie Valley Line will cross the Libertyville branch it is the purpose of the petitioner to establish Y-track connections with the Libertyville branch, and the property in this case is sought for the purpose of establishing such connections and the transfer service between the two lines at the place in question.

By its charter the Chicago, North Shore & Northern Railroad was authorized to build the line in question. The only extent to which it had used its power was to commence the building of this railroad, which it had not completed, and its power in the premises would not be exhausted until its completion. Upon the consolidation of the two roads the railroad company formed by the consolidation succeeded to all the rights of each of the corporations of which it is composed (Chicago, Rock Island & Pacific Railroad Co. v. Moffitt, 75 Ill. 524), including the power of condemnation of lands for failroad purposes. (22 R. C. L. 59). Appellant's contention that the power of condemnation had been exhausted is based upon the fact that appellee had acquired a right of way just to the west of appellant's land, which extended to the tracks of the Libertyville branch of appellee's railroad. This right of way so acquired was shown to be for the purpose of crossing the Libertyville Line with the main Skokie Valley Line and has nothing to do with the Y-track connections. This right of way would merely permit a crossing of the Libertyville branch and would not permit any connection therewith for the transfer of traffic. The Y-track connections consist of two forks, one bending to the east and the other to the west, and both forks are located on the property here involved. This arrangement is to permit the transfer of traffic between the Libertyville branch and the Skokie Valley Line. The piece of property sought to be taken contains 25.8 acres. On it is the intention of appellee also to locatea number of switches, transfer tracks, and storage tracks to be used in the transferring of traffic at this point.

While it is the general rule that where a railroad company has once fixed the location of its road the power of the company in that respect is exhausted and it cannot relocate its road without statutory authority to do so and it is without power to condemn a right of way for a line which it can not unlawfully locate (Cairo, Vincennes & Chicago Railway Co. v. Woodyard, 226 Ill. 331, 80 N. E. 882,9 Ann. Cas. 55), yet the power of a railroad company to condemn land for necessary switches or side tracks or connections is not exhausted by the location and completion of the main line, but it is a continuing one, which may be exercised from time to time as the needs of the company may require. State Board of Equalization v. People, 229 Ill. 430, 82 N. E. 324. This rule did not prevent appellee from maintaining the present suit.

It is contended by appellant that the court should have dismissed the petition on the ground that there was no necessity for taking the quantity of land described in the petition. Witnesses connected with the building of the road testified in detail as to the uses and purposes to which the land proposed to be taken was to be put and as to the amount of land necessary for such purpose. One witness who had no connection with the work and had not been actively engaged in railroad work for several years testified that in his opinion it would not be necessary to take the entire 25.8 acres. The board of directors of the appellee prior to the commencement of the condemnation...