Crain Enterprises, Inc. v. City of Mound City

• Decision Date: 11 October 1989
• Docket Number: No. 5-87-0296,5-87-0296
• Citation: Crain Enterprises, Inc. v. City of Mound City, 544 N.E.2d 1329, 189 Ill.App.3d 130 (Ill. App. 1989)
• Parties: , 136 Ill.Dec. 554 CRAIN ENTERPRISES, INC., an Illinois corporation, James W. Crain, Stephen Crain, Jeffrey Crain, and Tom Jennings, Plaintiffs-Appellees/Cross-Appellants, v. CITY OF MOUND CITY, Illinois, a municipal corporation, Defendant-Appellee (Consolidated Grain and Barge Company, Defendant-Appellant/Cross-Appellee).
• Court: Appellate Court of Illinois

Page 1329

544 N.E.2d 1329

189 Ill.App.3d 130, 136 Ill.Dec. 554

CRAIN ENTERPRISES, INC., an Illinois corporation, James W Crain, Stephen Crain, Jeffrey Crain, and Tom Jennings, Plaintiffs-Appellees/Cross-Appellants, v.CITY OF MOUND CITY, Illinois, a municipal corporationDefendant-Appellee (Consolidated Grain and Barge Company, Defendant-Appellant/Cross-Appellee).

No. 5-87-0296.

Appellate Court of Illinois Fifth District.

Oct. 11, 1989.

A. Ben Mitchell, Musick & Mitchell, Professional Corp., Mt. Vernon, for Consolidated Grain and Barge Co.

Harris, Lambert & Wilson, Marion, and W.C. Spomer, Cairo, for Crain Enterprises, Inc., James W. Crain, Stephen Crain, Jeffrey Crain, and Tom Jennings.

Mark H. Clarke, Cairo, for City of Mount City, Illinois, a Municipal Corp.

Justice CHAPMANdelivered the opinion of the court:

Defendant Consolidated Grain and Barge Company(Consolidated), successor in interest to Behimer & Kissner, appeals from an order of the circuit court of Pulaski County granting injunctive relief to the plaintiffs, Crain Enterprises, Inc., James W. Crain, Stephen Crain, Jeffrey Crain, and Tom Jennings(Crain).The injunction requires defendant Consolidated to remove certain obstructions, more specifically railroad tracks and related structures, which it placed on the west one-half of Commercial Avenue in Mound City, Illinois, because they interfered with plaintiffs' easement rights.Crain has cross-appealed the finding of the trial court that certain ordinances enacted by defendantMound City(the city) are valid exercises of its home rule powers.

While the facts of this case are largely undisputed, the procedural history is extensive.We will relate only so much of that history as is necessary for resolution of the issues involved.Crain Enterprises owns a manufacturing facility located at the intersection of Commercial Avenue and First Avenue in Mound City.Its warehouse complex is also on Commercial Avenue, approximately three thousand feet north of the manufacturing facility.In 1980defendant Consolidated became interested in constructing a grain elevator and transportation facility in Mound City.The purpose of this facility is to transfer bulk commodities such as grain or fertilizer from truck or rail transportation into barges, or vice versa.Consolidated determined that the only feasible site for this facility included property parallel and adjacent to the west half of Commercial Avenue.In other words, the Consolidated facility abuts Commercial Avenue on the west, while the Crain facility abuts Commercial Avenue on the east.Commercial Avenue had been a public street for over one hundred years.The east half of Commercial Avenue contained two sets of railroad tracks which had been in place for over sixty years.Because these tracks were placed on and parallel to Commercial Avenue, the east half of Commercial Avenue was not used as a public thoroughfare, nor was it suitable for such use.Consolidated determined that it would be necessary, if its project was to succeed, to place three additional rail lines on the west half of Commercial Avenue, thereby closing the street to vehicular traffic.

After being approached by Consolidated concerning its need to close Commercial Avenue, the city enacted the three ordinances that are the subject matter of Crain's cross-appeal.OrdinanceNo. 589 granted Consolidated a railroad franchise and leased the west forty-four feet of Commercial Avenue to Consolidated to implement the franchise.OrdinanceNo. 612 vacated certain side streets to permit the installation of Consolidated's grain elevator.OrdinanceNo. 625 vacated the west forty-four feet of Commercial Avenue as a public street.

Prior to passage of the ordinances, James Crain appeared at the city council meetings to object to the closing of Commercial Avenue.Crain's objections were: (1) that OrdinanceNo. 589 was in violation of the Street Railway Act because it would close Commercial Avenue to vehicles and pedestrians; (2) the ordinances were for a private purpose; (3) the ordinances would injure his company by restricting ingress and egress and by increasing rail traffic on the street; and (4) his own plans for business expansion would be stifled.

Despite the plaintiffs' objections, on January 6, 1981, Mound City enacted OrdinanceNo. 589, a franchise ordinance granting Consolidated the right to construct and operate railway lines over the west half of Commercial Avenue.Crain filed a complaint on April 1st, 1981, (CauseNo. 81-CH-2) seeking to enjoin the proposed railway and to have OrdinanceNo. 589 declared invalid.In July of 1981 Consolidated began construction of the railway, and Crain obtained a temporary restraining order on July 14th, which was dissolved on July 23rd. Consolidated resumed construction and on September 15, 1981, the trial court entered a final order denying a preliminary injunction and dismissing Crain's complaint with prejudice.Plaintiffs appealed to this court, arguing that they were entitled to amend their pleadings as a matter of right.On November 3rd, 1982, this court entered an order reversing the trial court and remanding with instructions to permit Crain leave to file an amended complaint.Crain Enterprises, Inc. v. City of Mound City(1982), 109 Ill.App.3d 1223, 71 Ill.Dec. 891, 451 N.E.2d 1045(unpublished Rule 23order).

After remand, the trial court entered an order consolidating causes 81-CH-2 and 81-MR-15.CauseNo. 81-MR-15 had been initiated by Bulk Services, a competitor and neighbor of Consolidated, on December 3rd, 1981.In that complaint Bulk Services alleged that certain actions of Consolidated relating to the removal of a portion of the Conrail track on Commercial Avenue would injure Bulk Services' business and it requested that the trial court enter a temporary restraining order preventing Consolidated from cutting or otherwise interfering with the railroad track.The Bulk Services cause of action was dismissed based upon a stipulation between the parties.Prior to the dismissal, however, Crain filed a motion to intervene in CauseNo. 81-MR-15, maintaining that the actions of Consolidated, as alleged in the Bulk Services' complaint, would also irreparably damage them.Accordingly, at the time of the order which consolidated causes 81-CH-2 and 81-MR-15, Crain's claim was the only remaining cause of action in 81-MR-15.

In the meantime, Consolidated had completed the railway and siding as well as other construction, including a seed warehouse, an office building, and two grain silos.In June of 1983, the city passed OrdinanceNos. 612 and 625 which vacated certain side streets and the west forty-four feet of Commercial Avenue.Plaintiffs amended their complaint in November of 1983 and in December added Count II seeking to have OrdinanceNo. 625 declared void.Crain also instituted an additional lawsuit, CauseNo. 81-MC-1, alleging that OrdinanceNo. 612 was ultra vires because it was enacted for Consolidated's exclusive use and for private purposes.By August of 1984 Consolidated completed construction of its facility.The total cost of the project was approximately 7.5 million dollars.In May of 1985plaintiffs amended their complaint and added Count III, alleging that they had an easement right of access along Commercial Avenue based upon a plat originally recorded in 1856.A second count was also added to the complaint in CauseNo. 81-MC-1 in which plaintiffs alleged that they had an easement in the streets and alleys conveyed by OrdinanceNo. 612 pursuant to the same recorded plat.

The trial began on July 8th, 1985, and concluded on July 12th.On August 11th, 1986, the trial court entered its judgment order and found: (1) that OrdinanceNos. 589, 612 and 625 were legitimate exercises of the powers of a home rule municipality and served a substantial public purpose and provided a substantial public benefit; (2) Crain had a private right of easement, which arose from the recorded plat, over the vacated streets for ingress and egress to its property abutting those streets; (3) the structures and tracks placed upon the vacated streets constituted a nuisance, subject to abatement, to the extent that they deprived the plaintiff of its private right to use the streets for ingress and egress to its property, and Consolidated was therefore required to remove the obstructions; (4) that the loss to the public from the issuance of an injunction, including the benefits derived from an annual payroll in excess of one million dollars, utility taxes in excess of fifteen thousand dollars, and recapture of four hundred thousand dollars plus interest in grant monies clearly exceeded the benefit to be derived by the plaintiffs; and (5)the court was not permitted to consider the public interest or balance the equities between the parties because the actions of Consolidated were intentional in starting, continuing, and completing construction after notice by the plaintiffs at public meetings prior to the enactment of OrdinanceNo. 589 that the closing of Commercial Avenue would interfere with Crain's ability to travel the streets sought to be closed, and in continuing and completing construction of the project after the filing of CauseNo. 81-MC-1 on April 1st, 1981, challenged the legal authority of the city to enact OrdinanceNo. 589.Defendant Consolidated filed a post-trial motion on September 15th, 1986, which was denied by the trial court on March 26th, 1987.Consolidated now appeals the trial court's grant of injunctive relief to the plaintiffs and the plaintiffs have cross-appealed from the finding by the court that the ordinances in question were valid.

We first address the issue of the validity of OrdinanceNos. 589, 612, and 625.As previously stated, OrdinanceNo. 589 granted defendant Consolidated a franchise to construct and operate railway lines over the west half of Commercial Avenue.The plaintiffs contend that Ordinance...