Chicago & A.R. Co. v. City of Pontiac

• Decision Date: 08 November 1897
• Citation: 169 Ill. 155,48 N.E. 485
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. CITY OF PONTIAC.

169 Ill. 155

48 N.E. 485

CHICAGO & A. R. CO.

v.CITY OF PONTIAC.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from Livingston county court; C. M. Barickman, Judge.

Proceedings by the city of Pontiac against the Chicago & Alton Railroad Company to condemn certain land. From a judgment for plaintiff, defendant appeals. Affirmed.

C. C. & L. F. Strawn, for appellant.

Z. F. Yost, for appellee.

This is a proceeding begun by the filing of a petition in the county court by the city of Pontiac alleging the passage of an ordinance by the city council of that city for the improvement of Prairie street therein, by the extension of the same across the lands, right of way, and tracks of the appellant company. The proceeding was instituted to condemn a strip of ground 66 feet wide, and extending east and west across said lands, right of way, and tracks, so as thereby to connect the east and west parts of said street, and make it continuous and of uniform width east and west through said city. The petition prays that any award therefor be paid by general taxation levied, assessed, and collected from taxable property within the corporate limits of said city. It also prays to have the company's damages sustained by such extension of the street across its property ascertained by law, and that, when the same are paid and deposited, the city may be authorized to take possession of the premises for the uses and purposes of the street, and no other. A copy of the ordinance passed by the city council providing for such improvement, and of the acts and proceedings of the council relating to the same, certified by the city clerk, and under the corporate seal of the city, was attached as an exhibit to the petition. The appellant filed a cross petition, setting up that the ground proposed to be taken was a part of its right of way, and that there were four tracks-two main tracks and two side tracks-in use upon the same; that said ground was within the yard of the appellant, used for switching, storing cars, loading and unloading merchandise and live stock; that the extension of the street across the yard and right of way of appellant would impair and damage the use of said yard by interfering with and rendering inconvenient the loading and unloading of stock; that said extension would deprive the appellant of the use of said ground for warehouses, elevators, storehouses, and other buildings, and damage and depreciate the same for such purposes; and the cross petition claims that, if said street should be extended across said yard and right of way, damages should be assessed and paid to appellant pursuant to the statute, etc. A trial was had before a jury. Testimony was introduced, and the sheriff took the jury to the ground, sought to be taken, to examine the same. The jury returned a verdict, finding that the extension of Prairie street across the land described in the petition would depreciate the value of said land for railroad purposes, and assessed the damages thereto at the sum of $200. A demurrer, which had been filed to the petition of the city by the appellant, was overruled by the court. A motion to dismiss the petition of the city was also made by the appellant, accompanied with an offer of proof in support of the motion to dismiss. This motion, together with the offer of proof to sustain the same, was overruled. Motions for a new trial and in arrest of judgment were also overruled. Thereupon judgment was entered by the court, permitting the city, upon payment to the county treasurer of Livingston county, of the sum of $200 and costs, to extend Prairie street across the land, right of way, and tracks of the railroad company, as prayed in said petition. The present appeal is prosecuted from such judgment.

MAGRUDER, J. (after stating the facts).

1. Appellant urges that the demurrer filed by it to the petition of the city should have been sustained. Without considering the question whether the filing of the cross petition by appellant, and the introduction of testimony in support thereof, amounted to a waiver of the right to insist upon the grounds urged in favor of the demurrer, we will briefly consider such grounds as presented by counsel for appellant in their argument.

The petition is alleged to be defective upon the alleged ground that the description of the premises therein is vague, uncertain, and indefinite. We do not regard the petition as defective in this respect. The petititon shows that the premises to be taken comprise part of the lands, right of way, and tracks of the appellant. The words ‘lands, right of way, and tracks' are broad enough to cover and include the yard of appellant. We have held in a number of cases that the terms ‘right of way,’ ‘tracks,’ and ‘lands,’ apply to tracks or lands devoted to the purpose of a railroad yard. Illinois Cent. R. Co. v. City of Chicago, 156 Ill. 98, 41 N. E. 45;Chicago & N. W. Ry. Co. v. City of Chicago, 151 Ill. 348, 37 N. E. 842;Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 586, 30 N. E. 1044. The petition and the ordinance attached to it show that the strip of land to be taken is 66 feet wide, and is an extension of Prairie street from the east side of the right of way of appellant to the west side of said right of way. This description is sufficiently accurate as to the distance, width, and location. The statute only requires that the petition shall contain ‘a reasonably accurate description’ of the property to be taken or damaged. Rev. St. c. 24, art. 9, § 5. There is no rule which requires any greater certainty in the description than such certainty as will enable a surveyor to readily find and locate the ground. Such certainty exists here. Village of Byron v. Blount, 97 Ill. 62;Newman v. City of Chicago, 153 Ill. 469, 38 N. E. 1053.

The petition is alleged to be defective upon the ground that it does not show that the compensation to be paid for the property sought to be condemned could not be agreed upon between the city and the appellant. This point is without force. Where the petition is filed, under article 9 of the city and village act, to condemn land for a street, an allegation of inability to agree upon the compensation is unnecessary. Chicago & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141, 35 N. E. 881;Lake Shore & M. S. Ry. Co. v. City of Chicago, 148 Ill. 509, 37 N. E. 88;Cahill v. Village of Norwood Park, 149 Ill. 156, 36 N. E. 606;City of Danville v. McAdams, 153 Ill. 216, 38 N. E. 632;Chicago & N. W. Ry. Co. v. Town of Cicero, 154 Ill. 656, 39 N. E. 574.

The petition is also alleged to be defective upon the ground that upon its face it does not show a public necessity for the extension of the street across the right of way, tracks, and yard of the company. It was not necessary for the petition to allege facts showing such public necessity, inasmuch as the question of public necessity is a legislative question, and therefore the ordinance passed by the common council providing for the improvement was decisive of that question.

It is further alleged that the petition is defective in not showing that the new use of the property sought to be condemned for a street would be consistent with the railroad uses to which it was already devoted. We cannot regard this objection as well taken. Lands once taken for a public use pursuant to law under the right of eminent domain can be appropriated by proceedings in invitum to a different public use, where there is legislative authority authorizing the same to be done. Such legislative authority exists in paragraph 89 of section 1 of article 5 of the city and village act, which provides that ‘the city council shall have power, by condemnation or otherwise, to extend any street, alley or highway over or across, or to construct any sewer under or through any railroad track, right of way, or land of any railroad company within the corporate limits.’ 1 Starr & C. Ann. St. p. 472; Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 586, 30 N. E. 1044, and cases therein cited; Chicago & N. W. Ry. Co. v. City of Chicago, 151 Ill. 348, 37 N. E. 842. Moreover, section 5 of article 9 of the city and village act provides specifically what the petition shall contain. That section makes no requirement for an allegation as to the public necessity of the improvement, or as to the consistency between the new public use and the old public use. Therefore, ‘there is no proper place in this particular proceeding for either’ allegation. City of Danville v. McAdams, supra.

2. Appellant claims that the court below erred in refusing to grant its motion to dismiss the petition of the city. It urges three grounds upon which the court below erred in refusing to grant said motion. These three grounds are: First, that it would be an abuse of the power of eminent domain to permit the extension of the street across the land, yard, and right of way and tracks of the company under the particular circumstances of this case; second, that there was no public necessity for the extension of the street; and, third, that the appropriation of the ground for street purposes by extension of the street would be inconsistent with its present use, under the power of eminent domain, for railroad yard, right of way, and track uses. None of the three reasons thus presented would have justified the court below in dismissing the petition. We are therefore of the opinion that there was no error in denying the motion to dismiss the same.

In the first place, it is for the legislative branch of the government alone to determine whether the exigency exists which calls for the exercise of the power of eminent domain, and for its delegation to municipal or other public corporations of its creation. O'Hare v. Railroad Co., 139 Ill. 151, 28 N. E. 923;Illinois Cent. R. Co. v. City of Decatur, 154 Ill. 173, 38 N. E. 626. City councils have the power to determine what are local improvements, and what is the necessity for the same, and, where there is...