Ligare v. Chicago, M.&N.R. Co.

• Decision Date: 03 April 1897
• Citation: 46 N.E. 803,166 Ill. 249
• Court: Illinois Supreme Court
• Parties: LIGARE v. CHICAGO, M. & N. R. CO. et al.

166 Ill. 249

46 N.E. 803

LIGARE

v.CHICAGO, M. & N. R. CO. et al.

Supreme Court of Illinois.

April 3, 1897.

Appeal from Cook county court; O. N. Carter, Judge.

Proceedings by the Chicago, Madison & Northern Railroad Company and by the city of Chicago against George G. Ligare, impleaded with the Connecticut Mutual Life Insurance Company, for the condemnation of property. The proceedings were consolidated for trial, and from the judgment Ligare appeals. Affirmed.

The appellee railroad company, on May 3, 1893, filed its petition in the county court to condemn for a right of way for track purposes the north 30 feet of lot 1 in block 10 of South Branch addition to Chicago, and that part of the west half of Ogden slip adjacent; and on July 25, 1893, the appellee the city of Chicago filed its petition to condemn for its uses as a public street, in widening Archer avenue, the south 20 feet of said lot 1 and all of lot 2 in said block 10, and the west half of that part of Ogden slip adjacent. The property thus taken, except from Ogden slip, together constituted a tract 100 feet fronting on Ogden slip, and extending back 200 feet. Ogden slip was a water way about 70 feet wide opening into the South Branch of the Chicago river, and whether a mere private ditch or canal or a public navigable water way was a question in dispute. The petition of the city was filed in pursuance of an ordinance passed by the city council July 14, 1893, providing that Archer avenue be extended, opened, widened, altered, and laid over and upon the 70 feet above mentioned, and that part of the west half of Ogden slip adjacent be permanently filled with earth. In 1889 the city had passed two ordinances providing for condemning the same 100 feet for widening Archer avenue, and for the location, in addition to the one track already established, of six railroad tracks in Archer avenue as already laid out, and in the north 30 feet of the 100 feet added, leaving 70 feet of the added part unobstructed by railroads other than street railways; and upon its petition obtained a judgment condemning said 100 feet for the widening of this street. The premises had formerly been leased to the Joliet Stone Company for 10 years by lease expiring May 6, 1896. An assignment of this lease was obtained for the benefit of the appellee railroad company by purchase of the assignee. Pending the appeal to this court prosecuted by Ligare, the present appellant, possession was taken of the property, the six additional railroad tracks were laid, and the street was widened and opened for travel, and Ogden slip was, by order of the court, left unfilled. Upon hearing the appeal this court reversed the judgment of condemnation without remanding the cause, holding that the ordinances under which the proceedings were had were null and void. See Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934, for a full statement of that case. After that decision, and in May, 1893, the appellee railroad company filed its petition as above stated to condemn the 30 feet, which it already occupied with its tracks by virtue of its contract with the city under the ordinances of 1889; and the city, in pursuance of its ordinance of July 14, 1893, filed its petition to condemn the 70 feet already occupied by it as a part of Archer avenue. The following plat, made an exhibit to the petition, shows the situation of the premises as they appeared at that time:

Image 1 (5.02" X 6.16") Available for Offline Print

Image 2 (4.52" X 6.8") Available for Offline Print

The same premises as they appeared before the street was widened, and the additional tracks were laid, are shown by a plat in the former proceedings set out in 139 Ill. 50, 28 N. E. 934. [See above.]

By agreement between the railroad company and the city the company bound itself to pay all costs, expenses, and damages incurred by the taking and appropriating of the property for street purposes. All other property necessary for the uses of appellees was obtained by purchase or by condemnation in other cases. Further facts are stated in the opinion of the court.R. S. Thompson and C. C. Bonney, for appellant.

E. H. Gary, for appellees.

PER CURIAM.

The grounds upon which we are asked to reverse this judgment may be reduced to three, and stated as follows: First. It is contended that the proceedings are in contempt and defiance of the former opinion and judgment of this court reported in Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934; that, rightly viewed, they are a mere attempt to obtain a rehearing and reconsideration of that case. Second. It is contended that Ogden slip, a part of which is also condemned, and which, by the ordinance, is ordered to be filled, is a public navigable water way, and was so declared in the Ligare Case, supra, and that the city of Chicago had no power to order it filled, and that no obstruction can be placed in, over, or upon it without permission of the secretary of war, under the act of congress. Third. It is claimed that the trial court erred in its rulings in the admission and exclusion of evidence, and in instructing the jury in relation to the measure of damages.

As we understand the argument of counsel, it is not claimed that appellees are precluded by a former adjudication from condemning the property in question for their respective uses, but rather that it sufficiently appears from the proceedings that the purpose for which the condemnation is sought is the same as it was in the former case, and which was by this court in that case declared illegal. In the former case the appellee railroad company was not a party, but the petition was filed by the city of Chicago to condemn, as alleged, for street purposes, in widening the same street, the same 100 feet of ground sought to be taken in these two consolidated cases; but it appeared by the two ordinances in question in that case that the purpose of the proceeding was to surrender all of Archer avenue as theretofore opened to certain railroad companies, and also to surrender the north 30 feet of the 100 feet sought to be condemned to the appellee company in which to lay its tracks, leaving the remaining 70 feet for ordinary street purposes; the consideration being that the appellee company was to pay all the costs, expenses, and damages consequent upon the taking of the entire tract of 100 feet. It was held in that case that the city had no power to surrender Archer avenue, as already established, to the exclusive use of the railroads; and that, where it plainly appeared that such would be the effect of the laying and use of so many tracks as there attempted to be authorized, it was immaterial that the ordinance did not, in terms, provide for such surrender; and it was further held that it appeared that the purpose for which the 30 feet was sought to be taken was to devote it to the uses of the appellee railroad company, and that the city had no power to condemn property for railroad purposes exclusively; and the two ordinances then in question, and which were the foundation of the condemnation proceedings, were declared null and void, and the judgment of the trial court was, therefore, reversed, without remanding the cause. We do not understand counsel for appellees as undertaking here, on this branch of the case, to call in question the legal principles there announced, and which would seem to be too plain for controversy; but, on the other hand, it seems that the effort is made to avoid the errors which in the first case were found to be fatal. It was not held in the former case that the appellee railroad company had no power to condemn for its uses the 30 feet in question, for it had made no attempt to do so; nor was it held that the city had no power to alter or widen Archer avenue at that locality by taking for the purpose the 70 feet in question. Indeed, it was expressly said in the former case: ‘We do not deny that the city has the power to widen streets generally, and that when it has undertaken to do so the motives that may have actuated those in authority are not the subject of judicial investigation; but the purpose for which a thing is done is very different from the motives which may have actuated those by whom it is done, and is, in the present instance, a legitimate subject of judicial investigation, for the right to exercise the power of eminent domain is in all cases limited by the purpose for which it shall be exercised, as thus private property may be condemned for public use, but it may be shown that the use in fact is not public, but private. Railroad Co. v. Wiltse, 116 Ill. 454, 6 N. E. 49;Sholl v. Coal Co., 118 Ill. 427, 10 N. E. 199.’ And it was shown that the purpose of the condemnation was to surrender that part of Archer avenue already established and 30 feet of the ground sought to be condemned to the sole use of the railroad companies. But here the appellee railroad company has filed its own petition for the condemnation of the 30 feet for its own uses, and on the preliminary hearing in the county court showed that it was necessary for the location of its tracks in pursuance of its charter powers; and on the same hearing, the petition of the city having been consolidated with that of the railroad company, it was shown that the widening of Archer avenue at the place in question had become a great public necessity for general public uses as a street. The appellant filed his sworn preliminary objections and motion to dismiss the petitions, and presented in support thereof on the preliminary hearing before the court, the former proceedings in Ligare v. City of Chicago, supra. But no sufficient showing was made that the purpose...