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

• Decision Date: 03 April 1897
• Citation: 47 N.E. 318,167 Ill. 9
• Parties: ILLINOIS CENT. R. CO. v. CITY OF BLOOMINGTON.
• Court: Illinois Supreme Court

167 Ill. 9

47 N.E. 318

ILLINOIS CENT. R. CO.

v.CITY OF BLOOMINGTON.¹

Supreme Court of Illinois.

April 3, 1897.

Appeal from circuit court, McLean county; Thomas F. Tipton, Judge.

Action of trespass by the Illinois Central Railroad Company against the city of Bloomington. Judgment for defendant, and plaintiff appeals. Reversed.

Williams & Capen, for appellant.

Jacob P. Lindley, City Atty., J. H. Rowell, and J. S. Neville, for appellee.

PHILLIPS, J.

This is an action of trespass brought by appellant against appellee to recover damages for the cutting down of certain posts and signboards and entering upon and grading certain lands on the west side of appellant's track in the city of Bloomington. From a judgment in favor of appellee an appeal has been prosecuted to this court.

Under the pleas filed, the principal question of fact arising on this record is whether the property destroyed and the grading of the land were in appellant's right of way, or within the public highway of the city. The streets within the city of Bloomington running east and west, and crossing the locus in quo, commencing at the south, are Washington, Jefferson, North, Market, Douglas, Mulberry, Locust, Chestnut, Walnut, and Empire. Four of these, running from the west towards the east, extend no further than to the right of way of appellant company, namely, North, Market, Douglas, and Mulberry. Before the railroad was built at the locus in quo, Washington street was the county road, and soon afterwards Jefferson street was extended across the railroad track. In 1872 Locust and Chestnut streets were similarly extended, as was also Walnut a short time before the commencing of this suit. Empire street, which is on the township line, was laid out in 1855. In 1845 none of these streets at the locus in quo were in existence. A public highway four rods wide, having for its center the line between sections 3 and 4, was laid out from Washington street, on the south, to what is now Empire street, on the north, as now extended. At what is now Empire street, this highway turned east for a few rods, and thence ran north. From a period prior to 1845, and until 1852, when appellant laid its track, this highway between sections [167 Ill. 13]3 and 4 existed and was traveled as a public highway. In the latter year, when appellant laid its track, approaching the section line at an acute angle, crossing the section line a short distance north of Chestnut street, and to run 81 feet east thereof at Jefferson street, and 21 feet west thereof at Empire street, the land east of the section line was owned by David Davis. Flagg owned the land west of the section line, as far south as the middle of the block between Mulberry and Douglas streets. Dimmit owned from this point to North street; Nichols, from North to Jefferson; and Fell, from Jefferson to Washington. By purchase, or acquiescence of landowners, appellant obtained the right of way, extending 75 feet west of this track as far north as Flagg's land, and 40 feet west of this track for the remainder of the distance. When procuring its right of way, appellant obtained a bond from Flagg, in which it was recited that it had obstructed and closed up a public right of way, and was by law required to lay out and provide a new one to accommodate public travel, and in which bond Flagg obligated himself to convey a strip of land for such contemplated road. About 1852 or 1853, appellant erected a fence 40 feet west of this track, from where is now...