Dowie v. Chicago, W.&N.S. Ry. Co.

• Decision Date: 21 February 1905
• Citation: 214 Ill. 49,73 N.E. 354
• Court: Illinois Supreme Court
• Parties: DOWIE v. CHICAGO, W. & N. S. RY. CO.

214 Ill. 49

73 N.E. 354

DOWIE

v.CHICAGO, W. & N. S. RY. CO.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Circuit Court, Lake County; C. H. Donnelly, Judge.

Condemnation proceedings by the Chicago, Waukegan & North Shore Railway Company against John Alexander Dowie. From the judgment rendered, defendant appeals. Affirmed.

V. V. Barnes, Charles E. Lauder, and P. R. Barnes, for appellant.

Ela, Grover & Graves, for appellee.

RICKS, C. J.

This appeal was prosecuted from the judgment of the circuit court of Lake county fixing and awarding appellant damages in a condemnation proceeding brought by appellee for its right of way. Appellee is a railroad corporation organized under the laws of this state, and authorized to construct and operate a railroad from the state line between Illinois and Wisconsin, in Lake county, Ill., and in the township of Benton (in which township the land in controversy lies), to and into the city of Chicago. Several years before this petition was filed, and before appellant acquired the lands in controversy, the Chicago North Shore Belt Terminal Railroad Company was organized, and located its line of road immediately adjoining the Milwaukee Division of the Chicago & Northwestern Railroad, acquired a part of the right of way, and partially constructed a portion of its railroad by grading and laying railroad ties. Appellee succeeded to its rights. About the year 1900 John Alexander Dowie, the appellant, purchased about 6,600 acres of land in said Benton township, in Lake county, and at the time of this proceeding still owned the same. Among the lands so purchased was the whole or the greater part of sections 15, 22, and 27 in said Benton township, and described in the petition as town 46, range 12 east of the third principal meridian, in Lake county. The strip through these three sections that was condemned is 100 feet wide, and contains 21.22 acres. Between the 20th and 26th days of March, 1902, the appellee located and staked out the line in question, and in the latter part of March or first of April (about which date there is some controversy) filed its petition and plat of its right of way in said court, and began this proceeding. To the proceeding the Zion Lace Industries, a corporation organized under the laws of this state, and operating a lace factory on part of the lands formerly purchased by appellant, was made a party, as also were other parties. Appellant filed his cross-petition, in which he claimed that the lands sought to be taken were of the value of $221,000, and that lands not taken and adjacent thereto would be damaged in the sum of $100,000. A jury was waived, and the cause tried before the court without a jury; and the trial judge, at the solicitation of both the parties, personally visited and viewed the lands in controversy and all the surroundings in that locality-the land to be taken and the remainder adjacent thereto. The hearing covered a long period of time and the record contains about 1,000 pages. The court awarded damages for between 17 and 18 acres of land taken, at $300 per acre, and for lands not taken, but damaged-about 20 acres-at $100 per acre.

While many errors are assigned, but few are mentioned in the argument, and our consideration will be confined to those to which our attention is directed.

It is first contended that Zion City, a municipal corporation, should have been made a party, and that, without havingall the parties in interest before it, the court did not have jurisdiction to proceed and find appellant's damages. No authority is cited upon this question except section 2 (Hurd's Rev. St. 1903, p. 908, c. 47) of the condemnation act. This section has been a number of times construed, and the holding of this court has been uniformly adverse to the contention of appellant. Bowman v. Venice & Carondelet Railway Co., 102 Ill. 459;Indiana, Illinois & Iowa Railroad Co. v. Conness, 184 Ill. 178, 56 N. E. 402. In the latter case it was said (page 180 of 184 Ill.,page 402 of 56 N. E.): ‘It is not essential to the jurisdiction of the court that all the owners shall be brought into court, even as to land taken, but compensation may be ascertained separately.’ There is no reason for the rule contended for by appellant. One who has an interest in the property and who is not made a party is not affected by the proceeding, and loses no rights thereby, and it is of no concern to appellant that other persons who may have interests are not made parties, as appellant is in no manner affected or controlled by the rights of other persons as to his damages, and as to his rights under the petition. The proceeding would be as though no other party was defendant. In the case at bar, if appellant's contention that the city of Zion was a municipal corporation, and was the owner of the streets and alleys over a portion of the lands through which the appellee condemned its right of way, was sound, he is not only not injured, but greatly benefited, by the fact that the city was not made a party, as he has been allowed compensation for the value of all the lands taken by appellee that he claims belong to the streets and alleys of said city, and the only effect will be that if he receive pay therefor, and the land does not belong to him, the city will still be at liberty to assert its claim.

The contention that appellee could not condemn its right of way over the lands of appellant lying within the present corporate limits of Zion City because it (appellee) did not have a license to cross or traverse the streets and alleys of Zion City cannot be admitted. If such license is necessary, the question only affects the rights of appellee and the city, and appellee may, if it becomes necessary, obtain the license of the city at any time before it constructs its road. Suburban Railroad Co. v. Metropolitan West Side Elevated Railroad Co., 193 Ill. 217, 61 N. E. 1090. Besides, the evidence shows, beyond question, that appellee had located, surveyed, and staked out its route for its road over the land in question before the incorporation of Zion City, and the subsequent incorporation could not affect appellee's right to the extent of depriving it of its priority of location. When Zion City became incorporated, it was bound to, and did, take notice of appellee's rights and prior location by showing upon its plat the exact location and width of appellee's right of way. This latter fact is denied by counsel for appellant, but the recorded plat incorporated in the record shows that such was the case. On March 28th or 29th (which of said dates being uncertain) appellee, by special messenger, delivered into the hands of the circuit clerk of Lake county the petition for condemnation and the plat or profile of its right of way as located, with a written request, in the form of a letter to said clerk, to file both the petition and the plat, and issue summons against the appellant, and deliver the same to the sheriff, and stating that the attorney would remit. The clerk received said papers from the messenger, and retained the same till March 31, 1902, when he wrote the appellee's attorney that he doubted his right to file the survey or plat, and stated the docket fee was $16, but did not state whether he had filed the petition or not. The attorney for appellee visited the clerk April 1st, and requested the clerk to file the papers as of the date delivered; but the clerk would not do so, but filed them as of April 1st. The clerk, at the time the papers were presented to him, did not demand the fee, but held the papers until Zion City had voted to be incorporated, and appellant had filed a plat subdividing a portion of the territory through which appellee's right of way was located. The messenger testified that the clerk received from him the package, and read the letter, and stated it was all right. The clerk testified that the messenger left before he had time to read the letter. The testimony tends to show, or strongly raises the suspicion, that the clerk was fully aware of the nature of the papers and the importance attached to their filing, and of the proceedings that were being taken by appellant to prevent the appellee from having the benefit of the proceedings, by the incorporation of part of the territory through which the line was to run. We are not prepared to hold that the failure of appellee to advance or tender the fee, when not demanded, deprived it of the benefit of the prior presentation of the petition and plat to the clerk. It has been well said that one having an instrument to file in an office can only present it to the proper officer, and when he has done that he has all the benefit and adbantage of the act, as though it had been formally filed, as he has no control over the person of the officer; and we feel entirely warranted, on a well-established line of authorities, and under the facts established by the record, in holding that appellee was entitled to the benefit of the filing as of March 28th or 29th, either of which dates was anterior to the incorporation of Zion City. Cook v. Hall, 1 Gilman, 575;Merrick v. Wallace, 19 Ill. 486;Nattinger v. Ware, 41 Ill. 245;Hamilton v. Beardslee, 51 Ill. 478;Pease v. Fish Furniture Co., 176 Ill. 220, 52 N. E. 932; 8 Ency. of Pl. & Pr. 923.

The question of the filing of the petition in this case becomes important in another aspect of the case. Appellant contends that Zion City was incorporated before the filing of the petition, and that the property sought to be condemned should have been recognized as blocks, streets, and alleys, as shown by the plat, and that ...