Alton & S.R.R. v. Vandalia R. Co.

• Decision Date: 16 February 1916
• Docket Number: No. 10286.,10286.
• Citation: 271 Ill. 558,111 N.E. 531
• Court: Illinois Supreme Court
• Parties: ALTON & S. R. R. v. VANDALIA R. CO.

271 Ill. 558

111 N.E. 531

ALTON & S. R. R.

v.VANDALIA R. CO.

No. 10286.

Supreme Court of Illinois.

Feb. 16, 1916.

Appeal from St. Clair County Court; Joseph Messick, Judge.

Condemnation proceedings by the Alton & Southern Railroad against the Vandalia Railroad Company. From a judgment awarding damages to the defendant railroad, it appeals. Affirmed.

See, also, 268 Ill. 68, 108 N. E. 800.Fordyce, Holliday & White, of St. Louis, Mo., and Whitnel & Browning, of East St. Louis (John G. Williams, of St. Louis, Mo., of counsel), for appellant.

John L. Flannigen, of East St. Louis, and M. W. Schaefer, of Belleville, for appellee.

CRAIG, J.

This is an appeal from the judgment of the county court of St. Clair county awarding damages to appellant in a condemnation proceeding under the Eminent Domain Act institutedby appellee for the purpose of condemning a crossing over the right of way and railroad tracks of appellant.

In 1913 the appellee filed its petition with the Railroad and Warehouse Commission of the state of Illinois, seeking permission to cross at the same grade the railroad right of way and tracks of appellant, and also the right of way and tracks of the Baltimore & Ohio Southwestern Railroad Company about 120 feet south of the railroad of appellant. Appellant and the Baltimore & Ohio Southwestern Railroad Company opposed the crossing being made at grade and resisted the petition. The cause was heard by the State Public Utilities Commission of Illinois, which succeeded the Railroad and Warehouse Commission. On June 12, 1914, the Public Utilities Commission entered an order authorizing appellee to cross the railroad of appellant at grade, the right of way to be first obtained in accordance with the Eminent Domain Act or otherwise, at a point described in the order, and that the appellee in this suit install an interlocking plant of approved design at said crossing, to be submitted to the appellant company and to the commission for examination and approval, appellee to bear the entire expense of the construction of said crossing and interlocking plant and the cost of the installation and maintenance thereof. The order further provided that appellant, after agreement with appellee, or after appellee had complied with the requirements of the Eminent Domain Act with respect to this matter, should raise its grade at the point of crossing approximately 2 feet, the necessary changes in approaches thereto along appellant's tracks and the distance along appellant's road in which said rise of grade should be made to be determined by agreement between appellant and appellee if possible, and if not such matters were to be determined by the commission at another hearing.

A similar order was made as to the interlocking plant to be installed at the crossing of the Baltimore & Ohio Southwestern Railroad, and it was stated in the order that no order is made concerning the respective shares of the Alton & Southern, the Baltimore & Ohio Southwestern and the Vandalia Railroad Companies in the expense and administration of the operation of said interlocking plants, as it was expected that the respective shares of the three railroads in these matters might be determined by agreement among them. The commission retained jurisdiction of the subject-matter and the parties hereto for the purpose of making any order regarding the respective shares in the operation of the interlocking plants which may be required or for the purpose of making any further order that may be necessary herein. Appellant appealed from the decision of the Public Utilities Commission allowing such crossing at grade, to the Sangamon county circuit court, where the order of the commission was affirmed. The appellant then appealed to this court, which at the April term, 1915, affirmed the decisions of the circuit court of Sangamon county and the Public Utilities Commission. Alton & Southern Railroad v. Vandalia Railroad Co., 268 Ill. 68, 108 N. E. 800. The parties were apparently not able to agree upon the cost and manner of construction of the grade to be constructed by appellant, and the approaches thereto, at the crossing of the two roads, and after the decision of the Supreme Court appellee filed its petition with the Public Utilities Commission to have said commission by its order fix such grade and approaches, and the commission, after a hearing upon this petition, on June 17, 1915, rendered its decision ordering that appellant's tracks be raised approximately 2 feet at the point of crossing, and also fixing the percentage of grade in the approaches thereto along appellant's tracks on each side of the crossing.

This condemnation suit was started in August, 1914, after the order of the Public Utilities Commission granting appellee the right to a grade crossing over appellant's road was made. The case came on for hearing in the county court in August, 1914, and appellant filed a motion to dismissthe petition, which was overruled by the court. Appellant then filed a general and special demurrer, which were also overruled, and it thereafter filed a motion that appellee be required to produce plans and specifications for its proposed crossing. The county court held that it could not advisedly proceed with the hearing until the Public Utilities Commission had determined the exact character and height of the and approaches at the crossing, and continued the case until such order should be made, with the further order that the findings and order of the Public Utilities Commission fixing the height which appellant's railroad should be raised and the extent of the fill on each side of the proposed crossing should be and stand as the plans and specifications required in appellant's said motion. The cause was continued, from time to time, until after the affirmance of the order of the Public Utilities Commission permitting such grade crossing by this court. After the order of June 17, 1915, of the Public Utilities Commission fixing the grade and approaches, a copy of said order, together with a plat and the original order of the commission, were filed in the county court as constituting the plans and specifications for said crossing.

When the cause came on to be heard in the county court, appellant filed its motion to dismiss the petition, which was denied, and it thereupon asked leave to refile the demurrers which it had previously filed to the petition in October, 1913, but the court having already disposed of the matter refused leave to refile said demurrers. Appellant then filed its motion to require appellee to file maps, profiles, etc., of the crossing, which was overruled. It then filed a further motion to strike from the files a copy of the order of the Public Utilities Commission, which had been filed by appellee as the plans and specifications for such crossing, which motion was overruled. Appellant then filed its cross-petition, claiming damages to property not sought to be taken, to which the appellee filed general and special demurrers, which were overruled by the court and appellee answered the cross-petition. Appellant then filed a motion to quash the panel of jurors, which was overruled. A jury was impaneled, evidence was heard, the jury were instructed, and returned a verdict finding that appellant was entitled to $125 for land taken and $9,000 for damages for raising its tracks and making approaches to correspond with the directions and specifications as to such work contained in the order of the Public Utilities Commission of June 17, 1915. Motions for a new trial and in arrest of judgment were respectively overruled by the court, and judgment was entered on the verdict, from which judgment this appeal is prayed.

Numerous causes of error have been assigned on the record, all of which have been considered and will be discussed in their order.

[1] It is first claimed that the articles of incorporation of the appellee fail to state, in compliance with the law, the places from which and to which it was proposed to construct said road. In the articles of incorporation of appellee it is stated that:

The ‘places from and to which it intended to construct said railroad are as follows: From a point at or near the easterly banks of the Mississippi river in the county of St. Clair, state of Illinois, opposite the city of St. Louis, Missouri, around and through the city of East St. Louis, Illinois, to a point at or near the easterly banks of the Mississippi river in Madison county, Illinois.’

It has been held that great latitude should be allowed in naming the termini of a railroad. If very great particularity were required, difficulties would be put in the way of obtaining a right of way, so that a description from one city to another would be sufficient. Gillette v. Aurora Railway Co., 228 Ill. 261, 81 N. E. 1005. In Alton & Southern Railroad v. Vandalia Railroad Co., supra, the situation of the parties and the location of appellee's railroad as a belt line with respect to the road of appellant and other railroads and belt lines is fully set out, and no question was there raised as to the articles of incorporation of appellee and the termini of its road.

It is also contended that no failure to agree had been shown; that no plats, plans, specifications, or maps were introduced, and no proof showing the location of the line and property sought to be taken. Again referring to the case of Alton & Southern Railroad v. Vandalia Railroad Co., supra, on page 70 of the opinion, 108 N. E. 801, the locus in quo of the crossing and the situation of the respective rights of way of appellant and appellee are fully set out, and also the decision and order of the Public Utilities Commission which was sustained by the circuit court, and what was to be done by appellee by way of installing an interlocking plant with the approval and under the direction of the Public Utilities Commission. It is not necessary to repeat them here, but we deem it sufficient to...