Shore v. Chicago

• Decision Date: 03 February 1881
• Citation: 97 Ill. 506,1881 WL 10433
• Parties: LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY CO. et al.v.CHICAGO AND WESTERN INDIANA RAILROAD CO.
• Court: Illinois Supreme Court

97 Ill. 506

1881 WL 10433 (Ill.)

LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY CO. et al.

v.CHICAGO AND WESTERN INDIANA RAILROAD CO.

Supreme Court of Illinois.

Filed at Ottawa Feb. 3, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

The plaintiffs in error brought this suit in the Superior Court of Cook county, by bill in chancery, against the defendant in error, seeking to enjoin the further prosecution by the defendant of certain proceedings, pending in the county court of Cook county, to which plaintiffs in error were made parties defendant.

The bill states that plaintiffs in error are joint owners and tenants in common of certain grounds in Chicago, designated as blocks 34 and 35, of a tract described in the bill, which grounds were bought by them many years since, and that the same have ever since been in their possession, having always been used exclusively for railroad purposes; that each of plaintiffs in error is operating a line of more than 1000 miles of main track, and is doing business as a common carrier of freight and passengers; that the business of each has been carried on for over twenty years, and is very large and is now increasing, and has, within the three years next preceding, increased more than 75 per cent; that they have already constructed, and in actual operation, various lines of track over these grounds; that the whole of said premises is necessary for the use and occupation of the roads of complainants; that the tracks of the Chicago, Burlington and Quincy Railroad Company pass over these grounds, also connecting tracks for transfers from other railroads; that there are daily passing over said premises more than 3500 cars and about 400 engines, and that the business is now so great, and so constantly increasing, as to cause great delays and inconvenience to complainants; that there is now an immediate necessity for the building by complainants of other tracks over these grounds, and that they intend, at an early day, to construct the same, and complainants can not properly transact their business or do their duty to the public without the use of the whole of these premises, and further, that any interference therewith will cause great and irreparable injury to them and to the interests of the public committed to their charge as carriers; that defendant's articles of incorporation are for the construction and operation of a line of railroad, to begin at a point on the State line between Illinois and Indiana, * * * to such terminus in the city of Chicago as may be selected by said corporation.

The bill further states, that defendant has instituted a condemnation suit in the county court of Cook county against complainants, to condemn fifty feet in width, diagonally, through and across said premises, in a north-east and south-west direction, and threatens, unless restrained, to prosecute such proceedings and to take possession of such strip of land.

It is further stated, that if the road of defendant be constructed as proposed, and operated, the business thereby conducted over these premises will be almost doubled; that such increase will so hinder and embarrass complainants in transferring freight and running trains, as to cause an injury, constantly increasing, and not susceptible of compensation by damages in a case at law, and would impair, infringe and destroy the franchises of complainants.

The bill also charges, that the construction and operation of defendant's road, as proposed, would, under the circumstances, necessarily be a nuisance of a serious and irreparable nature, in the delay of business and increased dangers to life.

The relief sought is a perpetual injunction, forbidding the condemnation proceedings and the construction of any road over the premises, and the taking possession of any part of the premises.

The answer, among other things, says, that before September, 1879, the defendant had selected and located the line for its track, from the city limits of Chicago to Fourteenth street, and that immediately thereafter the defendant company proceeded, with the knowledge of complainants, to expend a large amount of money in the purchase of lots, laying down of rails on its line thus selected in the city, and to construct, at great expense, its track thereon; and that, at the time of the filing of the bill, it had a line of road constructed in the city, and about ready for operation, from Fourteenth street to the limits of the city, continuously, excepting over the intervening property of complainants. The answer also stated that both of complainants and their officers and agents had full knowledge of the large expenditure of the defendant, and of the construction of a large depot at Fourteenth street, which could only be reached by crossing the premises and the main tracks of complainants, and that as early as February, 1880, negotiations were begun by the defendant company with the complainants for an amicable settlement of the place and terms of crossing these premises and complainants' main tracks; that the point of location of defendant's crossing was actually selected and approved by the officers of complainants more than six weeks before the filing of the bill, and that a price was agreed upon, which defendant should pay for such right of way; that, acting upon the faith of such location being settled, the defendant, with the knowledge of complainants, had, at much expense, procured the necessary crossing frogs, at the requisite angle, ready to be laid upon the agreed strip, and had also procured from the Chicago, Burlington and Quincy Railroad Company a right of way to cross their line on said strip, and that this was done with the knowledge of complainants, and without objection by them; that afterwards complainants repudiated such agreement and refused to permit such crossing, and thereupon defendant instituted the condemnation proceedings to condemn an easement for right of way, crossing said strip as proposed. Defendant insists in its answer that the county court thereby acquired paramount and exclusive jurisdiction over such subject matter, and of the persons of both complainants.

The answer also states that complainants appeared by counsel in the county court, and that by their application the hearing of the proceedings was postponed, and that afterwards plaintiffs filed in such county court, as part of said proceedings, a cross petition, praying compensation to be assessed for property which, they alleged, would be damaged, but not taken, and that issues being formed in the county court, a jury was impanelled, and, without objection on the part of complainants, the trial was entered upon and begun, and a part of the evidence heard, and that this bill was filed pending such trial.

Defendant denies that the premises are exempt from liability to condemnation in the manner being pursued by defendant, and denies that the prior location of plaintiffs' roads, upon the premises, prevents this defendant from locating said line across the same premises.

Defendant denies that any injury will accrue to complainants from the prosecution of such eminent domain action, and denies that this court of chancery has any jurisdiction to interfere with or exercise the eminent domain power of the State, or to grant an injunction staying the prosecution of said action.

The bill was verified by an affidavit of L. H. Clark, chief engineer of the Lake Shore and Michigan Southern Railroad Company. The answer was verified by the affidavit of John B. Brown, president of the defendant company.

A temporary injunction was allowed upon the filing of the bill. After the coming in of the answer, a motion to dissolve the injunction was made by defendant, supported by the affidavit of F. W. Huidekoper, president of the Chicago and Eastern Illinois Railroad Company, and documentary proofs. In opposition to the motion, complainants read in evidence affidavits of Jones, Fleming, Hopkins and Paine and Chase. The Superior Court of Cook county sustained the motion and dissolved the injunction, and (complainants' counsel asking the entry at once of a final decree, and defendant's counsel protesting against it,) it appearing to the court that no other relief save the injunction was sought by the bill, the court ordered the bill of complainants to be dismissed for want of equity. To reverse this decree, this writ of error is prosecuted.

Mr. C. D. ROYS, Mr. T. F. WITHROW, Mr. J. L. HIGH, and Mr. G. W. KRETZINGER, for the plaintiffs in error. Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. HENRY CRAWFORD, for the defendant in error.

Mr. CHIEF JUSTICE DICKEY delivered the opinion of the Court:

Counsel for plaintiffs in error, after stating the proposition, that the General Assembly of this State has no power, under our constitution, to take or to authorize the taking of private property from one owner for the mere purpose of giving it to another, and that it is only where such taking is “for public use” that the power of eminent domain can rightfully be exercised, insist that where property has already been appropriated to public use, and is, in fact, in such use in the hands of one corporation, it can not be rightfully taken (even by the authority of the statute to that effect) away from such corporation, for the purpose of subjecting it to the same public use in the hands of another corporation. This position we do not question. Where the public use in question is the same, such taking would undoubtedly degenerate into a taking from one for the mere purpose of giving to another, which we hold (under our institutions) is not within the domain of legislative power.

To warrant the taking of property of one party, already appropriated to a public use, and placing it wholly or in part in the hands of another party for a public use, it is essential that the new use be a different use, and also that the change from the present use to the...