Lake Shore & M.S. Ry. Co. v. City of Chicago

• Decision Date: 19 June 1894
• Citation: 37 N.E. 880,151 Ill. 359
• Court: Illinois Supreme Court
• Parties: LAKE SHORE & M. S. RY. CO. et al. v. CITY OF CHICAGO.

151 Ill. 359

37 N.E. 880

LAKE SHORE & M. S. RY. CO. et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Action by the city of Chicago against the Lake Shore & Michigan Southern Railway Company and others to open a street across the railroad right of way. There was judgment of condemnation, and the defendant railway company appeals. Reversed.

This was a proceeding instituted by the city of Chicago in the circuit court of Cook county, Ill., to condemn 66 feet in width of appellant's right of way for the opening of Sixtieth street, from State street to Wentworth avenue, in Chicago. The petition was filed July 18, 1890, and alleges that on the 27th day of January, 1890, the city council of the city of Chicago passed an ordinance providing that Sixtieth street be opened from State street to Wentworth avenue. The petition gives the description of the property to be taken or damaged, and the names of the owners, and prays that such owners may be made defendant and summoned, and the land and property described or so much thereof as may be necessary, may be condemned for the improvement specified in the ordinance, and that the just compensation for the property taken or damaged might be ascertained by a jury. Attached to the petition was a certified copy of the ordinance of the city of Chicago. The description of the property, in so far as this respondent is concerned, is as follows: ‘The 66 feet south and adjoining the north line of lot 10, block 1, of Nichols & McKindley's subdivision, produced easterly across the Lake Shore and Michigan Southern R. R. right of way.’ On the 20th day of January, 1891, appearance of appellant was filed. On January 21, 1893, this appellant made its motion to dismiss petition of the petitioner, assigning the following reasons: (1) The petition does not allege that the petitioner is unable to agree with appellant as to the compensation to be paid to it for the property sought to be taken or damaged in this proceeding. (2) The petitioner has no right, under the statute, to extend the said street, as proposed in this proceeding. (3) The petition does not contain a sufficient description of the property sought to be taken in this proceeding. But the court overruled the motion of the appellant, who then and there excepted. On January 20, 1893, before trial, appellant made its further motion, in writing, to postpone the trial of the cause as to its property until petitioner shall show that an attempt was made, before the petition was filed herein by the city of Chicago, to agree with the appellant as to the compensation to be paid appellant for the property taken or damaged, and that the court postpone the trial herein until petitioner shall have made such showing. This motion was denied, and respondent was compelled to go to trial against its objection. Exception was then and there taken to this ruling of the court. On the day last named, this cause was called for trial as to this appellant, and thereupon leave was given appellant to file its cross petition. The cross petition of appellant sets forth that appellant is a corporation duly organized for the transaction of a general freight and passenger business, with a main line extending from Chicago, Ill., to Buffalo, N. Y.,-a distance of 540 miles,-with various branches and leased lines, about 1,200 miles in all of main track; that is western terminus is in the city of Chicago; that upon said right of way, and immediately south of the land proposed to be taken, it has a railroad yard, with numerous side tracks, turnouts, and switches, used for the storing of cars and the making up and distribution of trains; that in the making up of said trains of cars in said yards, or in distributing cars therein, it is necessary frequently and continually for locomotive engines handling said cars to pass back and forth across the land so proposed to be taken upon two of the tracks there, being called ‘lead tracks,’ of said yard, which lead tracks extend across said land so proposed to be taken, said lead tracks being the tracks over which all engines or cars must run which are destined to or from any of the said tracks or turnouts in said yard; that the opening and uses of said proposed street across the right of way and track will greatly interfere with and interrupt the use of said yard, and endanger the lives of the public generally, as well as its employés, and also its property and the property of the general public, and the value and capacity of said yard will be thereby greatly depreciated and diminished,-whereby it (appellant) is damaged $100,000. It therefore prays that its damage be assessed, for the injury above complained of, for the property not sought to be taken. A trial was had between the city of Chicago and appellant, in which the Chicago, Rock Island & Pacific Railway Company did not participate, and distinctly declined so to do. The verdict of the jury awarded one dollar as compensation in the case. Appellant made its motion for a new trial, which was overruled, April 13, 1893, and judgment rendered on the verdict. Appellant prayed and was allowed an appeal from this judgment. Upon the trial, the petitioner and defendant offered evidence tending to show compensation that should be awarded for land taken,...