City of Paris v. Cairo
| Decision Date | 08 February 1911 |
| Citation | 248 Ill. 213,93 N.E. 729 |
| Court | Illinois Supreme Court |
| Parties | CITY OF PARIS v. CAIRO, V. & C. RY. CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Edgar County; W. B. Scholfield, Judge.
Action by the City of Paris against the Cairo, Vincennes & Chicago Railway Company and others. From the judgment, defendants appeal. Reversed and remanded.George B. Gillespie (L. J. Hackney, Shepherd & Trogdon, and Gillespie & Fitzgerald, of counsel), for appellants.
Wilber H. Hickman, Henry S. Tanner, and Joseph E. Dyas, for appellee.
The appellee, the city of Paris, filed a petition in the circuit court of Edgar county to extend, by condemnation, Buena Vista street across a certain railroad right of way owned by the appellant the Cairo, Vincennes & Chicago Railway Company, but used exclusively by the appellant the Cleveland, Cincinnati, Chicago & St. Louis Railway Company as lessee. Appellants filed a motion to dismiss the petition, which, after a hearing thereon before the court, was denied. The appellants then filed a cross-petition for the ascertainment of damages to property not taken. By agreement the hearing was had before the court without a jury, and resulted in a judgment assessing the just compensation to be paid for the land proposed to be taken at $150, and authorizing the city to enter upon, use, occupy, and control the same for the purposes of a street upon payment of that amount. Appellants have prosecuted this appeal from that judgment, and assign various grounds for reversal.
The line of railway owned by apellants was constructed in 1853 or 1854, and extended east and west through what was then the village of Paris. The village had about 500 inhabitants and did not include the proposed crossing. Afterwards the village was organized as a city, the limits were extended so as to embrace the land in question, and Buena Vista street was laid out south of the railroad right of way. Subsequently, during the year 1884, that portion of Buena Vista street north of the right of way was laid out, and by agreement between the city and the railroad company then owning the right of way, the railroad company constructed a bridge over the railroad tracks on a line with Buena Vista street and the city constructed dirt approaches on both sides of the right of way from the street to the bridge, thus furnishing a continuous passageway for travelers upon the street. This bridge, and the approaches thereto, have been used by the public from 1884 to the present time, the railroad companies owning the right of way having kept the bridge in repair. Paris is now a city of about 10,000 inhabitants, and that portion of the city in the vicinity of the proposed crossing is being built up with residences. Appellants' line of railway over which it is sought to extend Buena Vista street is known as the main line, and extends from the city of Indianapolis, in the state of Indiana, to the city of St. Louis, in the state of Missouri. Appellants have another line extending from the city of Danville to the city of Cairo, in this state. It forms a junction with the main line at Paris, and extends south through the city, crossing the main line a considerable distance west of Buena Vista street. A large quantity of freight is transferred at this junction. The first grade crossing east of Buena Vista street is 1,000 feet distant and the first grade crossing west of that street is about 1,700 feet distant. The yards, switches and commercial tracks, as well as the passenger and freight depots and the transfer platform, are located between the bridge above mentioned and the first grade crossing west thereof. Four tracks and a switch point leading to eight tracks in the railroad yards immediately west of Buena Vista street are located under the bridge, and in switching cars to and from and in the railroad yards it is necessary to pass under the bridge. The stock yards are immediately east of the bridge and on the north side of the right of way. The north track is used principally for loading and unloading stock at these yards, and that portion of the track under the bridge is frequently used for storing cars. The railroad at the proposed crossing runs in a cut about eight feet below the natural surface of the land.
On July 20, 1908, the city council of the city of Paris passed an ordinance changing and establishing the grade of Buena Vista street for a distance of 250 feet north and [248 Ill. 217]500 feet south of the appellants' main track, the established grade at the main track being the present grade of that track. A resolution was adopted at the same meeting providing for service of notice upon the appellant the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to conform its right of way to the grade established by the ordinance. The city soon afterwards entered into a contract with a contractor for the removal of the approaches to the bridge and the reduction of the grade of the street in accordance with the ordinance. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, being a foreign corporation, at once filed a bill in the United States Circuit Court for the Eastern District of Illinois to restrain the city of Paris, the city council, and the contractor from carrying out this contract, and from destroying, removing, or interfering with the abutments and the bridge, and from attempting to change the grade of the street or otherwise interfering with the property of the railway company. The defendants to the bill were duly served with process, but failed to appear in the cause, and a decree pro confesso was entered in accordance with the prayer of the bill. The findings of the decree, so far as necessary to be here shown, were substantially the same as the facts hereinbefore recited, and in addition thereto, that the overhead bridge had been in use for more than 25 years, and that the city had a right of way over said bridge by user or prescription; that the railway company had ever been willing to maintain and renew the bridge with safe, sufficient, and suitable materials for the accommodation of the public; that there was no public necessity requiring the reduction of the bridge and the establishment of a grade crossing; that the city of Paris was not acting from public motives nor for the public welfare, but at the instance and in the interest of one Hardy and contrary to the welfare of the public, and that it was to the interest and for the welfare of the city that said overhead crossing should be maintained as the railway company proposed to maintain it. Thereafter, on December 7, 1908, the city council of the city of Paris passed an ordinance providing that Buena Vista street be opened by condemnation, and that the land involved in this suit, being a strip 51 feet wide and 305 feet long, across the right of way of appellants, be taken for such street purposes, and directing the city attorney to institute the necessary legal proceedings for the condemnation of the same. This proceeding was there after, on February 15, 1909, begun by the filing of the petition in the circuit court of Edgar county, and resulted in a judgment assessing $150 as the compensation to be paid appellants for the use of the crossing as a street by the city.
Appellants first urge that the petition should have been dismissed for the reason that there was no necessity for the opening of a street at this place; that the proceeding is a mere attempt to change the grade and not to extend the street across the right of way, as the city already has a right of way over the railway by user, and that the decree of the United States Circuit Court is res judicata as to all the matters presented by the petition.
The appellant companies hold their right of way subject to the right of the public to extend highways, streets, and alleys across the same. Buena Vista street has never been laid out across the appellants' right of way. Whether there exists a public necessity for the extension of this street across appellants' right of way is purely a legislative question, and the ordinance passed by the city council of Paris providing for the extension of the street is decisive of that question. Courts have the right to determine whether the use for which property is proposed to be taken is public or private in its nature, but when the use is public, as in this case, courts cannot...
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