St. Louis v. Springfield

• Decision Date: 30 September 1880
• Parties: ST. LOUIS, JACKSONVILLE AND CHICAGO R. R. CO. et al.v.SPRINGFIELD AND NORTHWESTERN RAILROAD CO.
• Court: Illinois Supreme Court

96 Ill. 274

1880 WL 10102 (Ill.)

ST. LOUIS, JACKSONVILLE AND CHICAGO R. R. CO. et al.

v.SPRINGFIELD AND NORTHWESTERN RAILROAD CO.

Supreme Court of Illinois.

Filed at Springfield Sept. 30, 1880.

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Menard county; the Hon. CYRUS EPLER, Judge, presiding.

Mr. N. W. BRANSON, and Messrs. DEARBORN & CAMPBELL, for the appellant. Messrs. ORENDORFF & CREIGHTON, and Mr. T. W. MCNEELEY, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Where the line of the Springfield and Northwestern Railroad intersects that of the St. Louis, Jacksonville and Chicago Railroad, at Petersburg, in Menard county, the track of the latter was originally supported by a high embankment; but, in constructing the former road, an excavation of the depth of about twenty feet, of the width of about forty-eight feet at the top, and sloping down to the width of about seventeen feet at the bottom, was made through this embankment, and the track of that road was laid therein. Planks were put in for retaining walls, and a wooden bridge was erected in place of the embankment removed by the excavation.

This proceeding is under the Eminent Domain act, approved July 10, 1872, to condemn right of way at this point, and to assess the damages resulting therefrom.

On the first trial in the court below the damages were assessed at only five cents; but this judgment was reversed, on appeal to this court, and the cause was remanded for a trial de novo. See C. & A. R. R. Co. et al. v. S. & N. W. R. R. Co. 67 Ill. 144.

On the last trial in the court below the damages were assessed at $700, and this amount being still unsatisfactory to the St. Louis, Jacksonville and Chicago Railroad Company, the present appeal is prosecuted.

The Springfield and Northwestern Railroad Company is entitled to have condemnation for its right of way across the right of way of the St. Louis, Jacksonville and Chicago Railroad Company,--but the last named company is entitled to be fully compensated for all damages it shall sustain in consequence thereof.

As was said, when the case was here before: “Appellants are entitled to such a sum for damages, to be paid by appellee in money, as will enable appellants to construct and keep in repair all such works as may be necessary to keep their track in a safe and secure condition. Nothing short of this can amount to the ‘just compensation’ provided by law. They are also entitled to damages for all such incidental loss and inconvenience as may be a necessary result.”

The court, at the instance of appellee, gave the following, among other instructions:

“The court instructs the jury that it is not the duty of the petitioners to restore the property to a condition, as nearly as possible, as it was before the excavation; for in law the petitioners have no control...