Chicago & N.W. Ry. Co. v. City of Morrison

• Decision Date: 21 February 1902
• Citation: 63 N.E. 96,195 Ill. 271
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. CITY OF MORRISON.

195 Ill. 271

63 N.E. 96

CHICAGO & N. W. RY. CO.

v.CITY OF MORRISON.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from Whiteside county court; H. C. Moore, Judge.

Application by the city of Morrison against the Chicago & Northwestern Railway Company for the condemnation of a street across the railroad. From a judgment granting the condemnation, the railway company appeals. Affirmed.

Barge & Barge (A. W. Pulver, of counsel), for appellant.

P. M. Ludens, City Atty. (L. T. Stocking, of counsel), for appellee.

CARTER, J.

This was a condemnation proceeding begun in the county court of Whiteside county by the appellee, the city of Morrison, to ascertain the just compensation to be made for the property taken and damaged by the laying out and opening of Cherry street, of the width of 66 feet, across the railroad tracks, right of way, and lands of the appellant, the Chicago & Northwestern Railway Company. The appellant filed its cross petition for damages to property not taken. The cause was heard before the court without a jury, and judgment was given for appellee, and allowing appellant compensatory damages in the sum of $238, from which judgment the railroad company has appealed to this court. After the appeal was taken the appellee deposited the amount of the judgment and costs with the clerk of the court, and filed its bond, as required by the order of the court, for the payment of any future compensation which may be awarded, and prayed an order for immediate possession, which was granted. From this order appellant prayed an appeal, which was not allowed; but it was ordered that said last order be incorporated in the bill of exceptions. The record shows that the appellant made a motion to dismiss the petition on the ground that appellee had no power under the law to condemn the property of appellant for the use of a public street, for the reason that such property was already appropriated to another and different public use inconsistent with the public use of the same as a street. Evidence was introduced in support of the motion; but the motion was overruled by the court, and the defendant excepted. The same question was raised by propositions which appellant requested the court to hold as law in the decision of the case, and which the court refused.

It is contended by appellant that the property sought to be condemned and used for a public street is already devoted by the railroad company to another public use, and that such use cannot coexist with the use as a public street, and that therefore the appellee has no right to condemn the appellant's property for such use; and cases are cited from various other jurisdictions in support of this contention. The mere fact that the use by the public of the land or right of way of a railroad company as a public street crossing would be inconsistent with the particular use to which the company had put it-as, for example, the storing of cars-is not a sufficient reason for denying the right of condemnation to the public for its use as a street crossing. It has been repeatedly held by this court that clause 89 of section 1 of article 5 of the general city and village incorporation act (Starr & C. Ann. St. p. 710) is express thority for the extension of streets, by condemnationor otherwise, by the city authorities over and across the tracks, rights of way, and lands of railroad companies. Illinois Cent. R. Co. v. City of Chicago, 138 Ill. 453, 28 N. E. 740;Chicago & N. W. Ry. Co. v. Same, 140 Ill. 309, 29 N. E. 1109;Illinois Cent. R. Co. v. Same, 141 Ill. 586, 30 N. E. 1044,17 L. R. A. 530;Chicago & N. W. Ry. Co. v. Same, 151 Ill. 348, 37 N. E. 842. The public and the railroad company would have the right to use the crossing jointly. In the last-named case it was shown that the streets sought to be opened would cross a railroad yard occupied by many railroad tracks, used for storing cars; but the court said that ‘they were each ‘railroad tracks,’ and it cannot be important to what particular use the railroad tracks may be devoted.' It was held that the deprivation of such use for storing cars was an element in the estimation of damages, but not a reason for denying the right of condemnation, although the continued use of the land for such purpose would necessarily be inconsistent with its use by the public as a public crossing, and the two uses could not coexist. Chicago & A. R. Co. v. City of Pontiac, 169 Ill. 155, 48 N. E. 485.

In the present case the railroad lands taken by the city for street purposes are crossed by five railroad tracks. There are two platforms extending across the proposed street,-one on the north side of the tracks, about 8 feet wide, made partly of concrete and partly of plank, and one on the south side, of varying width, constructed of brick and plank,-and both used for the accommodation of passengers in connection with the passenger house,...