Indiana Harbor Belt R. Co. v. Green

• Decision Date: 09 October 1919
• Docket Number: No. 12324.,12324.
• Parties: INDIANA HARBOR BELT R. CO. v. GREEN et al.
• Court: Illinois Supreme Court

289 Ill. 81

124 N.E. 298

INDIANA HARBOR BELT R. CO.

v.GREEN et al.

No. 12324.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 9, 1919.

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Condemnation proceedings by the Indiana Harbor Belt Railroad Company against T. F. Green and others. From judgment of condemnation, defendants appeal. Reversed and remanded.

Ashcraft & Ashcraft, of Chicago (E. M. Ashcraft, of Chicago, of counsel), for appellants.

Glennon, Cary, Walker & Howe, of Chicago (Bertrand Walker and F. Harold Schmitt, both of Chicago, of counsel), for appellee.

STONE, J.

This cause is brought to this court by appeal from a judgment in condemnation proceedings under the Eminent Domain Act (Hurd's Rev. St. 1917, c. 47).

The petition of the appellee filed in the trial court avers that it is, and for 20 years has been, a railroad corporation organized and existing under and by virtue of the laws of the state of Indiana; that under the Railroad Act and under its charter it was empowered to extend its railroad into the state of Illinois; that an agreement was entered into between it and the Chicago Junction Railway Company and other corporations, under date of June 29, 1907, whereby the Chicago Junction Railway Company, an Illinois corporation, transferred to the petitioner the possession of that part of its line of railroad extending from Franklin Park, in Cook county, Ill., to McCook, in said county, and from Blue Island, in said county, to Hammond, in Lake county, Ind., and granted to petitioner the right to enter upon, hold, occupy, maintain, manage, and operate the same for a period of four months from July 1, 1907; that on October 31, 1907, by virtue of an act of the Legislatureof the state of Illinois authorizing sales and transfers of railroads, toll bridges, and other property and franchises, approved April 21, 1899 (Laws 1899, p. 116), it purchased from the Chicago Junction Railway Company, and by appropriate deeds of transfer acquired title to, certain lines of railroad belonging to the Chicago Junction Railway Company, extending from Franklin Park to McCook, in Cook county, and from Blue Island, in Cook county, to Hammond, in Lake county, Ind., together with other lines of railroad; that under and by virtue of the Eminent Domain Act of Illinois and said act of 1899 the petitioner had the right to have and operate its railroad in Illinois, and to acquire by eminent domain land and property needed for said railroad, including depot grounds, yards, tracks, side tracks, etc., and for any other lawful purpose connected with or necessary to the operating or maintaining of said road; that the railroad belonging to and operated by the petitioner as a public or common carrier of freight extends from various points in Lake county, Ind., through said state into the state of Illinois; that it has located the yards, depot, depot grounds, tracks, side tracks, and connecting tracks of its road in the town of Proviso, in Cook county, Ill., and that it is necessary for petitioner to acquire the land described in said petition, to be held and used for the purposes aforesaid; that, under and by virtue of certain acts referred to in said petition, the petitioner is authorized to acquire, hold, and use the land for said purposes; that compensation to be paid for the land thus needed cannot be agreed upon by petitioner and the owners thereof, and the same cannot be acquired by purchase or otherwise. The petition sets forth the description of the land and the owners thereof, and makes said owners parties defendant, and prays for process.

Before entering upon the trial the defendants filed their petition asking the court to fix and ascertain in said condemnation proceedings the amount of damages, due to such proposed construction, to lands not taken or sought. A trial was had before a jury. The jury returned a verdict for $1,200 for the land taken, and $800 for damages to land not taken. A motion for a new trial was granted, and the cause was continued to March 18, 1918. The defendants, before entering upon the second trial, filed their motion, supported by an affidavit, for leave to withdraw their cross-petition filed in said cause for damages to land not taken, and to dismiss the petition of the appellee on the ground that the petition does not contain averments necessary to give jurisdiction to the court to hear the same; that the petition fails to show any right to bring or maintain condemnation proceedings; that the petition shows that the petitioner is a foreign corporation which has not complied with the laws of the state of Illinois permitting it to bring or maintain any action or do any business in the state of Illinois; that it is a fact that the petitioner is a foreign corporation, and has been doing business as a corporation in the state of Illinois for a period of at least five years without qualifying, as required by the statutes of the state of Illinois, before filing the petition herein; that the petitioner has acquired parallel and competing lines of railroad and is operating the same contrary to our statutes; that at the time of the alleged purchase by the petitioner it was not authorized by its charter to, nor did it in fact, own or operate a railroad to the state line of the state of Illinois, connecting with the lines of road alleged in the petition to have been purchased. This motion was overruled by the court and a second trial was had before a jury. The jury returned a verdict fixing the compensation to be paid the appellants for the land taken at $1,200, and for land not taken at $1,000. Motions for a new trial and in arrest of judgment were overruled, and judgment on the verdict entered for the above amounts and costs. Exceptions were taken to the rulings of the court and an appeal perfected to this court.

The only matters preserved in the bill of exceptions for review are the motion to withdraw suggestions for damages for land not taken and to strike the petition from the files, and the motion for new trial and in arrest of judgment.

It is contended by the appellants that the petitioner must show, by facts set forth in the petition, that it is a railroad under the laws of the state of Illinois; that the statute provides what facts must appear in the petition to condemn, and unless such facts are alleged in the petition the court is without jurisdiction to hear it; that the petitioner is a foreign corporation, and has failed to comply with the Foreign Corporations Act of Illinois enacted in 1905 (Laws 1905, p. 124), and is without authority to proceed under the Eminent Domain Act. It is contended by the appellee that the defendants have waived their right to assign said errors by proceeding to the first trial of this cause without raising the questions assigned as error, and that the granting of a new trial does not reopen the cause for a consideration of the questions thus waived; that the filing of the cross-petition, and the introduction of evidence in support of the same by the defendants, is an admission that the petitioner had a right to condemn the land in question; that the petitioner is a railroad corporation engaged in interstate commerce, organized under the laws of the state of Indiana, and qualified under said laws, as well as the laws of the state of Illinois, to own and operate the railroad referred to in the petition, and for that reason it has the authority of a foreign corporation to condemn the land in question under the Eminent Domain Act.

The first question to be determined is whether or not appellants have waived their right to question the jurisdiction of the court by going to trial on the first trial without raising the above question or by not abiding their motion made before the second trial to dismiss the petition. A new trial is a de novo hearing. Admissions or waivers as to questions of jurisdiction of the subject-matter, made for the purposes...