Chicago Terminal Transfer R. Co. v. Preucil
| Decision Date | 04 December 1908 |
| Citation | 86 N.E. 117,236 Ill. 491 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO TERMINAL TRANSFER R. CO. v. PREUCIL. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; George A. Dupuy, Judge.
Proceedings by the Chicago Terminal Transfer Railroad Company against F. M. Preucil for condemnation of property for a railroad right of way. From an order denying a motion to dismiss the proceedings for want of authority to take the property, defendant appeals. Dismissed.Franklin B. Hussey, Samuel Friedlander, and Eldon J. Cassoday, for appellant.
Jesse B. Barton, for appellee.
The appellee, a corporation organized under the laws of this state, and authorized to construct, maintain, and operate a railroad from the southwest corner of Harrison street and Fifth avenue, in Chicago, southerly, westerly and southwesterly through the city of La Salle to the Mississippi river, filed in the superior court of Cook county a petition under the eminent domain act to ascertain the compensation to be paid for the south 16 feet of lot 32, in block 16, in Sampson & Greene's addition to Chicago, and appellant's leasehold interest therein, to be appropriated and used for the purposes of constructing and operating a second main track thereon. The petition was dismissed as to the owner in fee, and appellant filed a motion to dismiss the petition as to him for want of authority to take his property for the uses of appellee. The motion was accompanied by a traverse or denial of the right of appellee to take the property for various reasons. One reason specified was that in the year 1897 the appellee purchased a railroad previously constructed south of said premises, crossing Rebecca street twice on curves, and had been operating the same since said purchase, either by itself or its receiver; that the only purpose of this proceeding was to relocate the line, and do away with the old curves, making a straight line; that the purchase of the said railroad amounted to a location of the appellee's road and exhausted its power of location; and that neither the corporation nor its receiver had any lawful power or authority to relocate the railroad on a line extending in the same general direction between the same termini. Other reasons given were that a previous proceeding in the county court between the same parties to condemn the same premises was dismissed by said court on motion of appellee, and the statute does not authorize a second proceeding between the same parties for the same purpose, and that the circuit court of the United States had no power to direct or authorize this proceeding. The court heard the evidence of the respective parties on the motion to dismiss the petition, and on March 2, 1908, overruled the motion. To the ruling of the court in overruling and denying the motion to dismiss, appellant duly excepted, and a bill of exceptions was tendered to and certified by the judge. On March 13, 1908, the parties filed a stipulation by which appellant waived a jury trial, and the question of compensation and damages was submitted to the court, with an agreement that there should be awarded by the court to appellant, as compensationfor the property taken and damages to the property not taken which might be claimed under a cross-petition, the sum of $2,500. It was agreed that the stipulation should not prejudice appellant as to his rights under the motion...
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... ... law of appeals, except as otherwise explicitly provided. ( ... Chicago M. & St. P. Ry. Co. v. Trueman, 18 Idaho ... 687, 112 P. 210.) ... ( ... Chicago Terminal Transfer R. Co. v. Preucil, 236 ... Ill. 491, 86 N.E. 117; Erie R. Co ... ...
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