Chicago & M. Elec. R. Co. v. Chicago & N.W. Ry. Co.

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1017,211 Ill. 352
• Court: Illinois Supreme Court
• Parties: CHICAGO & M. ELECTRIC R. CO. v. CHICAGO & N. W. RY. CO.

211 Ill. 352

71 N.E. 1017

CHICAGO & M. ELECTRIC R. CO.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Lake County Court; D. L. Jones, Judge.

Condemnation proceedings by the Chicago & Milwaukee Electric Railroad Company against the Chicago & Northwestern Railway Company. From a judgment dismissing the petition as to one tract sought to be taken, plaintiff appeals, and defendant assigns as error that the court erred in overruling its motion to dismiss the petition so far as it sought to take another tract. Cross-errors stricken from the record, and judgment reversed.

Cartwright, J., dissenting.Kretzinger, Gallagher, Rooney & Rogers, for appellant.

S. A. Lynde (Lloyd W. Bowers, of counsel), for appellee.

On September 10, 1903, the Chicago & Milwaukee Electric Railroad Company, the appellant, filed a petition in the county court of Lake county to condemn two tracts of land; one lying in the city of Ft. Sneridan, and the other in the village of North Chicago, both in Lake county. Both tracts belong to the appellee the Chicago & Northwestern Railway Company, hereinafter referred to as the Northwestern Comppany, which appeared and filed a traverse to the petition, denying the right or authority of the petitioner to condemn either parcel of land, and at the same time filed a motion in writing to dismiss the petition. The other appellees, who are trustees under certain mortgages of the respondent company, joined in the traverse and motion. The cause was set down for hearing upon the traverse and motion, and upon such hearing, evidence being taken in open court, the court held that the petitioner had the right to condemn the strip of land lying in the city of Ft. Sheridan, and, as to that land, overruled the motion to dismiss the petition, and further held that petitioner had no right to condemn the strip of land lying in the village of North Chicago, and, as to that strip, sustained the motion to dismiss the petition. Thereupon the court entered judgment that upon the payment of $4,500, which had been previously stipulated by the parties to be the amount of damages which would be occasioned by the taking of the property, petitioner have the right to enter upon the Ft. Sheridan property. Petitioner thereupon appealed from the judgment dismissing the petition as to the North Chicago property.

The evidence shows that petitioner was incorporated March 20, 1902, under the act in reference to the incorporation of railroads in this state, and is authorized by its charter to locate, construct, maintain, and operate a railroad from the city of Chicago in a northerly direction through the townships of Evanston and New Trier, in Cook county, and through the townships of Deerfield, Shields, Waukegan, and Benton, in Lake county, Ill., to some convenient point on the state line between Illinois and Wisconsin. Prior to the organization of petitioner, the Chicago & Milwaukee Electric Railway Company, organized under the general incorporation act of this state, had constructed, and at the time of the organization of petitioner was operating, an electric railway extending from Church street, in the city of Evanston, through the said townships of Evanston, New Trier, Deerfield, and Shields, to the city of Waukegan. On December 30, 1902, the Chicago & Milwaukee Electric Railway Company conveyed to petitioner all of its railroad property and franchises, and petitioner has ever since owned and operated the road so constructed by the Chicago & Milwaukee Electric Railway Company, and which passed through the city of Ft. Sheridan and the town of North Chicago.

Petitioner, at the time of filing the petition herein, already owned a strip of land 25 feet wide, west of and adjoining the 25-foot strip here involved, over which it was operating the single-track railroad owned by it and hereinabove mentioned; and the additional 25 feet is sought to be taken, as appears from the evidence, in order to lay and operate two tracks, the purpose of petitioner being to have a double track between Chicago and Waukegan. The North Chicago strip is the west half of a strip of land 1,434 feet in length north and south, and 50 feet wide east and west. Twenty-Second street is its northern boundary, and it lies west of and adjoining the right of way of the respondent railroad company. The depot and freight building of the latter company are located on a strip 50 feet wide and 1,600 feet long, which belongs to that company, and which lies on the opposite or east side of its right of way, and the south end of which abuts upon Twenty-Second street, which, running east and west there, crosses the Northwestern right of way. A switch track, referred to as a team track, is located east of the main tracks on the right of way abjoining the strip on the east side. The strip west of the right of way has been owned by the respondent railroad company since 1892, and has always been vacant and unoccupied, except that a switch track leading to certain factories in the village crosses it at the north end, which is the track over which a crossing is sought in this proceeding. The evidence of the respondents is to the effect that this entire strip west of the right of way is needed by the Northwestern Company for team tracks; that a great deal of business requiring immediate access to a team track is now carried on by one Arnold, who conducts a coal, lumber, and lime yard on the strip east of the right of way, just north of the passenger station, under a lease from the railroad company, and that other parties are requesting similar locations at this station for similar purposes, so that cars can be loaded and unloaded upon their premises; that these locations are not furnished to such parties in order to derive revenue from rentals, but for the sole purpose of facilitating the business of the railroad company with the public, and the rental is only nominal, being from $1 to $5 per year, and that it has long been the practice of this and other railroad companies to furnish such facilities at stations along their lines; that, owing to the growth of business, it had become impossible to furnish such locations with present facilities at North Chicago, and that in September, 1903 (shown by appellant to have been after the filing of the petition herein), the division superintendent had a survey made for a team track on the strip sought to be condemned, in order to furnish locations for such industries along the present team track; that, in addition to the uses aforesaid, the matter of laying two additional tracks between Chicago and Milwaukee is under consideration by the company, which, if carried out, will place an additional track on the east and one on the west of the present main tracks at this station, the one on the east taking the place of the present team track, and that therefore team tracks will have to be placed on the strip west of the right of way, and will take all that strip, including the 25 feet here involved. The petitioner introduced evidence to show that, in case the additional main tracks are laid, there will be abundant space between the east line of the strip it seeks to condemn and the most westerly of the additional tracks for a team track, and for the travel of teams used in loading and unloading cars there. Respondents sought to show that the entire 50-foot strip west of its tracks is needed by it for side and team tracks now or in the immediate future.

The court, as above stated, dismissed the petition as to this tract on the ground that the land was already devoted to a public use, and was not subject to condemnation. Appellant has assigned errors questioning this action of the court, and appellees have assigned cross-errors, and seek to show that the court erred in overruling their motion to dismiss the petition as to the Ft. Sheridan property, and in entering judgment of condemnation.

SCOTT, J. (after stating the facts).

Appellant moves to strike the cross-errors from the files on the ground that they relate to a judgment entirely separate and distinct from the judgment brought here by appeal. Petitioner sought condemnation of two separate tracts of real estate. Respondents interposed a motion to dismiss the petition as to both. This motion was sustained as to one parcel, and as to that parcel the judgment dismissing is the final judgment from which petitioner appealed. The motion was overruled as to the other tract, and the cause proceeded to a judgment fixing the amount of damages; and appellees, by their assignment of error, attack this latter judgment. We think it, in effect, a judgment separate and distinct from that appealed from. Had the two pleces of property been owned by different persons, it is manifest that those owning the one in reference to which judgment of condemnation was entered could not assign cross-errors questioning that judgment in an appeal by which petitioner brings before this court for review the judgment dismissing the petition as to the real estate of other owners. The fact that both tracts in the present instance belong to the same owner does not render the judgments any the less separate and distinct. The case of Oliver v. Wilhite, 201 Ill. 552, 66 N. E. 837, was a chancery proceeding, but we regard the doctrine there announced as applicable here. It was there said (page 564, 201 Ill., page 842, 66 N. E.): ‘When, however, a decree in chancery is severable-that is, composed of distinct parts having no bearing upon each other-each part may be treated as a distinct decree, and an appeal taken from one part without affecting the others. Walker v. Pritchard, 121 Ill. 221, 12 N. E. 336;Union Trust Co. v. Trumbull, 137 Ill. 146, 27 N. E. 24;Moore v. Williams, 132 Ill. 591, 24 N. E. 617. And when an appeal from one part of a severable decree is taken, cross-errors cannot be assigned as to parts not appealed from. Walker v. Pritchard, supra.’ The cross-errors will accordingly be...