David Bradley Mfg. Co. v. Chicago & Southern Traction Co.

• Decision Date: 23 October 1907
• Citation: 82 N.E. 210,229 Ill. 170
• Court: Illinois Supreme Court
• Parties: DAVID BRADLEY MFG. CO. v. CHICAGO & SOUTHERN TRACTION CO.

229 Ill. 170

82 N.E. 210

DAVID BRADLEY MFG. CO.

v.CHICAGO & SOUTHERN TRACTION CO.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from County Court, Kankakee County; A. W. Deselm, Judge.

Condemnation proceedings by the Chicago & Southern Traction Company against the David Bradley Manufacturing Company. From a judgment awarding it damages in a certain amount, defendant appeals. Affirmed.

W. R. Hunter, for appellant.

Small & Brock, for appellee.

HAND, C. J.

This was a proceeding commenced by appellee, against the appellant, in the county court of Kankakee county, under the eminent domain act, to condemn a strip of land for right of way purposes across a tract of land containing about twenty acres, located in the village of Bradley, in said county, owned by the appellant, and upon a portion of which was located the manufacturing plant of appellant. The land taken consisted of a strip 20 feet in width by 1,200 feet in length, and contained 55/100 of an acre. The jury found the land taken to be of the value of $375 and the damage to the land not taken to be $1,000. The court rendered judgment upon the verdict, and the manufacturing company has prosecuted an appeal to this court.

The appellee was organized under the provisions of the general railroad act of 1872. Hurd's Rev. St. 1905, c. 114. The articles of incorporation of the appellee recite: ‘The undersigned hereby organize a corporation under and by virtue of the laws of the state of Illinois, for the purposeof acquiring, purchasing, constructing, owning, maintaining and operating a street railroad in accordance with the laws of said state.’ And paragraph 2 provides: ‘Second. It is proposed to construct the said railroad from the city of Chicago to the city of Kankakee, and it is the purpose of this corporation to acquire, purchase, construct, own, maintain and operate a street railroad, with switches, side tracks and turn-outs, upon and through the streets, avenues, alleys and other public ways of the following named cities and towns, with such rights, powers, privileges, immunities and franchises in the said cities and towns as may be conferred by law, to wit: In Chicago, Harvey, Homewood and Matteson, in the county of Cook; in Peotone, in the county of Will; and in Manteno and Kankakee, in the county of Kankakee, all in the said state. And it is also the purpose of this corporation to acquire, purchase, construct, own, maintain and operate an interurban railway, by electricity or other power, from the said city of Chicago to, into, through and between the said cities and said towns of Harvey, Homewood, Matteson, Peotone, Manteno and Kankakee.’ At the adjourned regular annual meeting of the stockholders of the appellee, held at its office in Chicago on December 28, 1905, at which all the capital stock of the appellee was present and voting, the following resolution was unanimously adopted: ‘Whereas, heretofore, on the 4th day of November, 1904, there were executed, and thereafter, on the 10th day of November, 1904, duly filed in the office of the Secretary of State of the state of Illinois, articles of incorporation of this corporation as Chicago & Southern Traction Company, since which last-named date this corporation, under the name aforesaid, has been engaged in locating and constructing a line of interurban railroad between the city of Chicago, Cook county, Illinois, and the city of Kankakee, in the county of Kankakee, Illinois; and whereas, it was and is the intention of this company, by its articles of incorporation, as aforesaid, to be and become a railway corporation under the general railroad act of the state of Illinois, to the end that it may enjoy all the privileges created by the said act and be subject to all of the obligations and liabilities thereof; and whereas, by inadvertence, the charter of this company called its said line of railroad a street railroad, for the reason that this company intended to pass through certain cities and villages in the state of Illinois and to lay its tracks upon certain of the public streets in such cities and villages; and whereas, it is now the desire of this corporation to eliminate the word ‘street’ whenever it occurs in said charter, for the purpose of defining more exactly the purposes of its incorporation: * * * Be it therefore resolved, by the stockholders of Chicago & Southern Traction Company, in annual stockholders' meeting duly assembled, that the articles of incorporation of said Chicago & Southern Traction Company be and the same are hereby amended by changing the words ‘street railway’ to ‘railway’ (the word ‘street’ being expunged), whenever the same occurs in said articles of incorporation.' The appellant, upon being brought into court, filed a traverse to the petition, in which it averred that the appellee was not authorized and empowered to construct and operate a line of railroad, and denied that it had any legal right to condemn private property for right of way purposes. The traverse was overruled, whereupon appellant filed a demurrer to said petition, which was also overruled, and, having excepted to the action of the court in that regard, it now urges in this court, as grounds of reversal, that the appellee had no power to organize under the general railroad act for the purpose of constructing a street railroad in the cities and villages through which its line proposed to pass and to construct and operate between said cities and villages an interurban railroad, as it is said a railroad corporation cannot be lawfully organized under the general railroad act to construct and operate street and interurban railroads, and, as appellee was not properly incorporated under said act, it is without power to condemn land for right of way purposes, and that the court erred in declining to dismiss the petitioner's petition for condemnation.

Section 1 of the general railroad act provides: ‘That any number of persons, not less than five, may become an incorporated company for the purpose of constructing and operating any railroad in this state.’ Hurd's Rev. St. 1905, p. 1564, c. 114. While the language above quoted is broad, it has been held (Chicago & Southern Traction Co. v. Flaherty, 222 Ill. 67, 78 N. E. 29, and Gillette v. Aurora Railways Co., 228 Ill. 261, 81 N. E. 1005) that the same...