Chicago & Nw. Ry. Co. v. Vill. of Jefferson
| Decision Date | 31 March 1884 |
| Citation | 14 Ill.App. 615,14 Bradw. 615 |
| Court | United States Appellate Court of Illinois |
| Parties | CHICAGO & NORTHWESTERN RAILWAY CO.v.VILLAGE OF JEFFERSON ET AL. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding. Opinion filed April 15, 1884.
This was a bill in chancery for an injunction, brought by the Chicago and Northwestern Railway Company against the Village of Jefferson, Cook county, Ill., a corporation organized under chapter 24 of the Revised Statutes, and Asa F. Bradley, the village engineer, to restrain the defendants from constructing a certain ditch or drain under and across the complainant's railway track in said village. A preliminary injunction having been granted, the defendants answered the bill, and afterward moved to dissolve the injunction, and said motion coming on to be heard upon bill, answer, and certain affidavits filed by the respective parties, was granted, and said bill was thereupon dismissed for want of equity, at the costs of the complainant. From this decree the complainant has appealed to this court.
The bill avers, in substance, that the Chicago and Wisconsin Railroad Company was organized under a special act of the General Assembly of the State of Illinois, approved January 12, 1851, and that by virtue of said act said company was authorized, among other things, to construct its railroad upon or across any road or highway, which the route of its railroad should intersect, but was required to restore the road or highway thus intersected to its former state, or in a sufficient manner not to have impaired its usefulness; that said company constructed a railroad from Chicago through the territory now embraced within the village of Jefferson, to Cary, a distance of thirty-eight and one half miles; that said company was afterward consolidated with a certain other railroad company in the State of Wisconsin, and that by the consolidation of the company thus formed with certain other railroad companies the complainant became organized; that by an act of the General Assembly of the State of Illinois, approved February 15, 1865, it was provided that the complainant, as then consolidated, might have and exercise all powers theretofore conferred by the laws of this or any other State upon any company consolidated with it; that by virtue of such consolidation said railroad running through the village of Jefferson became a part of the complainant's road; that when said railroad was constructed and for more than twenty years thereafter, all the natural drainage from the west toward the railroad was from a ridge, the top of which is about two hundred feet from the road, and that no surface water flowed toward said road from any lands west of said ridge; that the complainant had constructed under its railroad two stone culverts, of dimensions sufficient to drain all the water from the adjacent property which would naturally drain or flow toward said railroad in any season; that on the west side of said ridge for a distance of nearly two miles, there is low ground, the water from which could never naturally flow or drain to said railroad; that the president and trustees of said village have constructed a large ditch from said low grounds west of said ridge along a public street of the village to where said street intersects said railroad, for the purpose of draining said lands; paying the expense of the same out of funds raised by taxation; that said ditch is between two and three miles long, with branches so constructed as to drain a territory of about five square miles; that it was not needed or claimed to be needed for the purpose of draining any waters which, before its construction, would naturally drain toward said railroad from adjacent lands; that said ditch is five feet wide at the bottom and twelve feet deep, with a one foot to one foot slope; that the complainant had constructed said railroad and put in said culverts long before the passage of said chapter 24 of the Revised Statutes, and long before the incorporation of said village, and that said railroad has been in operation ever since its construction; that said ditch was designed and constructed solely for the purpose of draining the lands west of said railroad and west of said ridge.
The bill further avers that said president and board of trustees have determined to construct said ditch under said railroad; that the cost of putting a safe and suitable culvert under said railroad, so as to pass the water which would flow along the ditch, would be from $1,000 to $1,500; that said village has passed an ordinance providing for the construction of said ditch across the line of said railroad, and directing the village engineer, after giving the complainant certain notice, to construct said ditch across and under said railroad; that the complainant runs over said railroad at that point an average of from thirty to thirty-five freight trains daily, and also twenty-eight regular passenger trains; that the digging of the ditch through the railroad embankment, would for the time being and during the construction of the culvert be a total obstruction of the business of the complainant over said road; that it is not the design of said village to do anything more than dig the ditch, without putting in any culvert; that said village has made no assessment of the damages which would result to the complainant from the construction of said ditch in the manner proposed, nor furnished any means to compensate the complainant for such damages, and that said ditch would result in no benefit to the complainant, but is only designed for the purpose of draining lands at a distance from said road, and in which the complainant has no interest; that the complainant is ready and willing and has repeatedly offered to construct said ditch under its road in the manner provided by said ordinance, and put in a suitable culvert, provided the same should be paid for out of the general funds of the village, in the same manner as the residue of the ditch has been paid for.
The bill charges that said village has no legal right to construct said ditch under the complainant's railroad for the purpose of draining lands from which the water would not naturally flow in that direction, and has no right to construct such ditch and culvert under said railroad at the sole expense of the complainant; that the village engineer has notified the complainant that he is intending to...
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