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

• Decision Date: 26 October 1893
• Court: Illinois Supreme Court
• Parties: LAKE SHORE & M. S. RY. CO. v. CITY OF CHICAGO.

148 Ill. 509

37 N.E. 88

LAKE SHORE & M. S. RY. CO.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from superior court, Cook county; Theodore Brentano, Judge.

Condemnation proceedings by the city of Chicago against the Lake Shore & Michigan Southern Railway Company and the Pittsburgh, Ft. Wayne & Chicago Railway Company. There was judgment of condemnation. The Lake Shore & Michigan Southern Railway Company appeals. Affirmed.

Pliny B. Smith and Gardner & McFadon, for appellant.

John S. Miller, Corp. Counsel, and Charles C. Gilbert, for appellee.

BAILEY, J.

This was a proceeding by the city of Chicago for the extension and opening of Chauncey avenue across the rights of way of the Lake Shore & Michigan Southern Railway Company and the Pittsburgh, Ft. Wayne & Chicago Railway Company. Chauncey avenue is a street 66 feet in width, running north and south, and, when extended, will cross the right of way of the Lake Shore & Michigan Southern Railway Company at the point where it is already crossed by Seventy-Sixth street,-a street 80 feet in width, and running east and west. The right of way of the lastnamed railway company (the only one involved in this appeal) is 100 feet in width, and runs from the northwest to the southeast at an angle of about 45 degrees from the line of Chauncey avenue extended. The portion of the right of way of that company which will be occupied by the avenue will consist, in addition to the land included in the intersection of the avenue with Seventy-Sixth street, of two small triangular pieces of ground,-one on the east side of Seventy-Sixth street, the two sides of the triangle adjacent to the right angle being each about 66 feet in length; and the other on the east side of Seventy-Sixth street, the corresponding sides of that triangle being each about 42 feet in length. A freight house of the railway company, about 250 feet in length, is situated on the northeasterly side of its tracks, about 100 feet north of the northerly point of the triangle on the north side of Seventy-Sixth street. On the southwesterly side of the right of way of this company is the right of way of the Pittsburgh, Ft. Wayne & Chicago Railway Company. The petition alleges that on the 23d day of March, 1891, the city council of the city passed an ordinance providing that Chauncey avenue be extended across the rights of way of these two railway companies, and sets out a copy of the ordinance. That ordinance provides for an extension of the avenue, as already stated, and that the improvement be made, and the cost of it paid for by special assessment, to be levied upon the property benefited thereby to the amount the same might be legally assessed therefor, and the residue to be paid by general taxation, in accordance with article 9 of the general law in relation to the incorporation of cities and villages; and it required the corporation counsel to file a petition in the superior court of Cook county, in the name of the city, praying that the just compensation to be made for private property to be taken or damaged by the improvement be ascertained by a jury, and to file a supplemental petition, in accordance with the provisions of section 53 of article 9 of the statute. The petition, after setting out the ordinance, and specifically describing the land to be taken, prayed that the two railway companies be made parties defendant, and be summoned, and that the property described, or so much thereof as might be necessary, be condemned for the improvement specified in the ordinance, and that the just compensation to be made for the private property to be taken or damaged be ascertained by a jury in the manner provided by law, and that such other proceedings be had as the nature of the case might require. The Lake Shore & Michigan Southern Railway Company, prior to the trial, entered its motion to dismiss the petition on the ground that it contained no allegation that compensation for the property sought to be taken or damaged could not be agreed upon, or that any attempt had been made to agree upon the compensation before the petition was filed, and for that reason that it was insufficient to confer jurisdiction. This motion was overruled, and anexception to the ruling was duly preserved by the railway company. Afterwards the company objected to being required to go to trial until the petition showed that an attempt had been made by the city of Chicago to adjust the compensation and damages for property to be taken and damaged. This objection was also overruled, and the trial was ordered to proceed, and to this ruling the railway company also excepted. An order was entered that the cases of the two defendants be tried separately, and, by agreement of the parties, the case as to the Lake Shore & Michigan Southern Railway Company was submitted to the court for trial without a jury; and at such trial the court, after hearing the evidence, found that the just compensation to be paid to that company for the occupation by Chauncey avenue of so much of its right of way as would be included between the east and west lines of the avenue extended across the right of way was one dollar. To this finding the railway company excepted. The court thereupon rendered judgment in accordance with its finding, and ordered that, upon payment by the city to the county treasurer of Cook county, for the use of the railway company, of the sum of one dollar, the city should have the right to take possession of the property condemned for the purposes set forth in the petition. To reverse that judgment, the railway company has appealed to this court.

The first point made is that the petition was insufficient to confer jurisdiction on the superior court, because of its failure to aver that the compensation to be paid for or in respect of the property sought to be appropriated or damaged for the purpose of extending the avenue could not be agreed upon by the parties interested, as is required by the second section of the statute in relation to eminent domain. That this allegation, or the allegation that the owner of the property is incapable of consenting, or that his name or residence is unknown, or that he is a nonresident, is necessary, or even jurisdictional, in case of a petition filed under the provisions of the eminent domain law, clearly results from the language of section 2 of that law, and we have so held in several cases. Reed v. Railway Co., 126 Ill. 48, 17 N. E. 807;Lieberman v. Railroad Co., 30 N. E. 544. In the following cases, arising under other similar statutes, the same rule is recognized: Railroad Co. v. Chamberlain, 84 Ill. 333;Bowman v. Railway Co., 102 Ill. 459;Chaplin v. Commissioners, 129 Ill. 651, 22 N. E. 484. But the petition in this case is not filed under either of the statutes referred to in the foregoing decisions, but under the provisions of article 9 of the city and village act. Sections 4 and 5 of that article prescribe the form and substance of petitions to be filed thereunder, and they contain no requirement that such petitions shall aver a failure by the parties to agree upon the compensation to be paid, or anything on that subject. Section 4 provides that when any ordinance is passed by the legislative authority of any city or village, providing for the making of any local improvement which will require that private property be taken or damaged for public use, the city or village shall file a petition in...