Joliet v. Healy
| Citation | 94 Ill. 416,1880 WL 9962 |
| Parties | JOLIET AND CHICAGO RAILROAD COMPANY et al.v.ROBERT H. HEALY et al. |
| Decision Date | 31 January 1880 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District; the Hon. THEODORE D. MURPHY, presiding Justice, and Hon. GEO. W. PLEASANTS and Hon. JOSEPH M. BAILEY, Justices.
Mr. C. BECKWITH, and Mr. GEO. W. SMITH, for the appellants.
Mr. J. P. BONFIELD, for the appellees.
This case has been elaborately argued in every phase it presents, but the view we have taken may be shortly stated. It is a bill filed by the owners of a lot abutting on what is called “Healy slough,” and its object is to secure the removal of a permanent railroad bridge constructed by the Chicago and Alton Railroad Company over the body of water bearing that name. The theory on which the bill is framed is, that the body of water spanned by the bridge is navigable, in the sense that term is used in the law when applied to streams with capacity to bear the usual products as well as the commerce of the country in suitable vessels for transportation, and hence the public have an easement over it, and any obstruction therein becomes a public nuisance; and on account of the situation of complainants' property they insist they have sustained damage of a special and peculiar nature, which will enable them to bring the bill in their own name.
On the hearing in the circuit court the bill was dismissed for want of equity, but on the appeal of complainants to the Appellate Court that decree was reversed, with directions to the circuit court to decree in conformity with the prayer of the bill, and giving specific directions as to what decree should be entered.
As nothing remained to be done in the court below other than to carry into effect the mandate of the Appellate Court, an appeal has been brought directly to this court, and that, under the statute, is allowable, as it is a case in which an appeal lies to this court.
It is suggested that, as the Appellate Court must have found this body of water was navigable in fact, such finding is conclusive, under the statute, on this court; and on this branch of the case it would only remain to ascertain whether it was navigable in law.
We have had occasion frequently to say, and quite recently in Fanning v. Russell, 94 Ill. 386, the provisions in the Practice act making the findings of fact by the Appellate Court conclusive on error or appeal to this court, have no application to chancery causes, and that it is the duty of this court, as it was before the passage of that act, to review the evidence as to facts found which constitute the basis of the decree.
The question made may be treated simply as a question of fact, viz: is the body of water spanned by the railroad bridge navigable, in the sense that term is used in the law? We think it is not. It will not be necessary, therefore, to consider when a stream is deemed navigable in law, either at the common law or under the American decisions.
One allegation in the bill upon which the right to relief is based, is that the “Healy slough,” so called, is a natural stream of water rising far to the south-west of the premises, running north-easterly toward the same, and, curving to the north, crosses Archer avenue in nearly a northerly direction, forms the westerly boundary of the premises, and empties into the south branch of the Chicago river,--the “Healy slough” being an arm branch and affluent of the south branch, and thereby connecting with the canal and with Lake Michigan, and being one of the navigable waters falling and leading into the St. Lawrence river through the Chicago river, Lake Michigan and other great lakes.
Another ground is, that the Joliet and Chicago Railroad Company, that originally constructed the road now operated by the lessee company, was obligated by its charter, whenever it became necessary to cross any water course in constructing its road, to restore such water course to “its former state, or in a sufficient manner not to impair its usefulness,” and as the Chicago and Alton Railroad Company has succeeded under a perpetual lease to all the rights of the former company, the same obligation rests upon it in that respect. But as it does not appear either railroad company has done anything to impair the usefulness of the water course other than to construct the bridge across it, which does not materially change it from its former state, the injury will be narrowed to the consideration of the first ground of relief mentioned.
Plats found in the record show with sufficient distinctness the situation of complainants' land, the location of the railroad bridge with reference to the water course crossed, and the length of the slough from its confluence with the river to the bridge on Archer road. These are matters of measurement mostly, about which there can be no disagreement. The ancestor of complainants, in 1837, acquired a right of preemption to lot 6, block 1, in the canal trustees' subdivision of the south fractional part of section 29, except one-half acre of equal width across the north side of lot 6, owned by Hough, and one lot on Lime street, south of Hough's tract, fifty feet wide by one hundred feet deep, owned by Stevens, as more definitely appears on the plat attached to the bill; and in 1855 he obtained a deed from the trustees by which he acquired the title in fee to the property now owned by complainants. The lot or piece of land described lies between the railroad bridge and the bridge on Archer road. Both of these bridges, as now constructed, are permanent structures. Archer road was laid out by the canal trustees in 1836, before complainants' ancestor had obtained any interest in the land they now own, and was indicated on the plat made by them, which was on record. It is now a principal street in the city of Chicago, and is called Archer avenue. It...
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