Illinois Cent. R. Co. v. City of Chicago

• Decision Date: 12 May 1892
• Citation: 30 N.E. 1044,141 Ill. 586
• Parties: ILLINOIS CENT. R. Co. v. CITY OF CHICAGO, (three cases.)
• Court: Illinois Supreme Court

141 Ill. 586

30 N.E. 1044

ILLINOIS CENT. R. Co.

v.CITY OF CHICAGO, (three cases.)¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from circuit court, Cook county.

Bills by the Illinois Central Railroad Company to enjoin the city of Chicago from extending certain streets across complainant's right of way. Upon hearing the bill was dismissed. Complainant appeals. Affirmed.

C. V. Gwin, (James Fentress, of counsel,) for appellant.

John S. Miller and Arthur H. Chetlain, for appellee.

MAGRUDER, C. J.

These are three bills in chancery, filed by the appellant company against the appellee in the circuit court of Cook county; and, as the cases involve the same questions, and have been submitted upon the same abstracts and briefs, they have been taken and considered as one cause. The object of the bills is to enjoin the city of Chicago from extending certain streets across the right of way of the Illinois Central Railroad Company. The first bill alleges that on September 22, 1890, the city passed an ordinance for opening Fifty-Sixth street across such right of way, and thereafter filed its petition in the said circuit court for the condemnation of the land necessary for such improvement; that on September 15, 1890, the city passed an ordinance for the opening of Seventy-Ninth street across said right of way, and thereafter filed its petition to condemn in the same court; that on January 19, 1891, the city passed an ordinance for opening Sixtieth street across said right of way, but no proceeding for condemnation in pursuance of this ordinance appears to have been begun at the time of the filing of the bill, on February 28, 1891. The second bill, filed on June 15, 1891, alleges that on March 16, 1891, the city passed an ordinance for opening Seventy-Second street across said right of way, and thereafter filed its petition for condemnation in said court. The third bill, filed on July 24, 1891, alleges that on March 30, 1891, the city passed an ordinance for opening Eighty-Second street between Dobson avenue and Stony Island avenue by condemning therefor that part of appellant's right of way lying between the north and south lines of said street, both produced eastwardly across said railroad, and thereafter filed its petition for condemnation in the superior court of said county; that on June 2, 1891, the city passed an ordinance for opening and widening Ninetieth street from Manistee avenue to the west line of appellant's right of way by condemning therefor certain specified parts of appellant's right of way; that the land over which it is so proposed to extend Eighty-Second and Ninetieth streets is ‘railroad yard’ land; that eight tracks have been laid in that part of the ‘yard’ where Ninetieth street will cross, and two tracks are in course of construction in that part where Eighty-Second street will cross; that the city thereafter filed its petition in said superior court to condemn the land necessary for so opening and widening Ninetieth street. The bills pray for injunctions against the opening or extension of these streets across the railroad tracks or right of way at grade, or otherwise than by viaducts over or subways under such right of way or tracks. The bills charge, and the answers of the city thereto deny, that the extension of streets, as ordered in said ordinances, will be an irreparable injury to the railroad company, and will obstruct the use of its tracks as now located, and materially and unnecessarily impair its franchises. Both sides introduced testimony, and, after hearing had, the court below dissolved the injunctions, and dismissed the bills. From such decrees of dismissal the present appeals are prosecuted.

The material questions here involved have been settled by recent decisions made by this court in the cases of Illinois Cent. R. Co. v. City of Chicago, 28 N. E. Rep. 740, and Chicago & N. W. Ry. Co. v. City of Chicago, 29 N. E. Rep. 1109. In view, however, of the great ability and ingenuity with which counsel have again pressed these questions upon our attention we will restate our views. The appellant company, like every other railroad company, holds its right of way subject to the right of the public to extend the public highways and streets across such right of way. Chicago & N. W. Ry. Co. v. City of Chicago, supra. The constitution of the state provides that ‘the exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the general assembly of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity, the same as of individuals.’ Const. 1870, art. 11, § 14. By the act of 1872, to provide for the incorporation of cities and villages, the general assembly conferred upon the city council in cities the power ‘to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds, and vacate the same.’ Rev. St. 1874, c. 24, art. 5, § 1, par. 7. If the legislature had granted to cities no other power in regard to the extension of streets across existing railroads than the general power conferred by paragraph 7, here quoted, it might be necessary to consider and discuss a number of authorities to which counsel for appellant have referred in their briefs. These authorities hold that the land included in the right of way of an existing railroad is already devoted to a public use by express legislative grant; that the extension of a street across it is such an appropriation of it to another public use as is not authorized by a general power to open or extend streets; that in such case the authority must be created, or the legislative intent must be made to appear, by express words, or by necessary implication. But the general assembly has conferred upon the cities in this state the power to extend streets over railroad rights of way by express legislative authority. That authority is given by paragraph 89, § 1, art. 5, of said act of April 10, 1872, in the following words: ‘The city council shall have power by condemnation or otherwise to extend any street, alley, or highway over or across, or to construct any sewer under or through, any railroad track, right of way, or land of any railroad company, (within the corporate limits;) but where no compensation is made to such railroad company the city shall restore such railroad track, right of way, or land to its former state, or in a sufficient manner not to have impaired its usefulness.’

Counsel say that the judgments to be rendered in the condemnation proceedings will take the land itself, or the exclusive use thereof. Such cannot be the effect of the judgments. We held in Illinois Cent. R. Co. v. City of Chicago, supra, that the track to be condemned under the provisions of paragraph 89, ‘for the extension of the street over and across railroads, railroad rights of way and lands,’ was intended by the legislature to be ‘subject to the joint use by the railroad in the exercise of its franchise and by the public as a street.’ The use by the public is, as matter of fact, subject and subordinate to the use by the railroad company. The trains of the railroad company have a prior right to passage over the crossing. The public, at whatever inconvenience it may be to the interests or the business of the individual citizen, is compelled to wait until the cars of the company have passed. The ordinances, in providing for an extension of the streets across the right of way, and for the condemnation of railroad property for the purposes of a street, provide only for the acquirement of an easement by the public over the railroad land, and not for any ownership in the fee thereof. The petitions in the condemnation proceedings ask only that land may be condemned for the improvements specified in the ordinances, and the improvements so specified are mere easements to be acquired for the purpose of crossing or passing over the tracks or rights of way. No judgments have yet been entered in the condemnation proceedings sought to be enjoined, but such judgments, when entered, in whatever language they may be couched, can only clothe the city with an easement or right to pass over the tracks. They cannot vest the city with the fee of the land, or with the exclusive use thereof, because the statute enters into and forms a part of the judgment, and limits and qualifies the nature of the condemnation therein ordered. As paragraph 89 authorizes nothing more than an easement to be acquired by the condemnation proceeding, it follows that the judgment therein ‘would necessarily only have vested the city with the right of use and occupancy of the land condemned, subject to the rightful use of the railroad company thereof. Neither will have the right of occupancy to the exclusion of the other, but each subordinate to the right of the other for the separate use contemplated; the one occupying and in control thereof for all the legitimate purposes of a public street, and the other for the reasonable and proper exercise of its franchise.’ While, however, the statute itself will limit the condemnation judgment in the manner here indicated as to the extent of the right conferred by it, yet the court rendering such judgment has the power to specifically state therein the nature of the interest thereby vested in the city. Illinois Cent. R. Co. v. City of Chicago, supra. We have also held in the latter case that equity will not interpose to enjoin a condemnation proceeding, at any rate for such reasons as are set up in the present bills. Whatever just claims the railroad company may have to compensation can be set up in that proceeding . ‘We are not aware of any authority that authorizes or gives jurisdiction to courts of equity to proceed by injunction unless there is an excess or abuse of the power conferred by law, or there is an attempt to take and...