People Ex Rel. the City of Bloomington v. the Chicago

Decision Date31 January 1873
Citation67 Ill. 118,1873 WL 8147
PartiesTHE PEOPLE ex rel. The City of Bloomington,v.THE CHICAGO AND ALTON RAILROAD COMPANY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an application for a mandamus, by the city of Bloomington against the Chicago and Alton Railroad Company, to compel the latter to construct a crossing at the intersection of its road with a certain public street. The facts of the case are fully stated in the opinion of the court.

Mr. IRA J. BLOOMFIELD, for the appellant.

Messrs. WILLIAMS & BURR, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was an application on the part of the city of Bloomington, to compel the Chicago and Alton Railroad Company to construct a crossing at the intersection of their road and Front street in said city.

It appears that, long prior to the building of the railway, a public road led from Bloomington to Pekin, which was known as the Pekin road. The railway crossed this road at grade a short distance south of the place to which the present controversy relates. It was, however, a dangerous crossing, and in 1862 it was decided, with the concurrence of the railway company, to open out Front street until it should intersect with the Pekin road, and to abandon the old crossing and construct a new one where Front street would cross the railroad. At this point the railroad passed through a cut, and the crossing, being a bridge, would be safe alike for the company and the public. The company contributed $100 and transported three car loads of lumber without charges for freight, and the city paid $130 towards the bridge. As soon as it was completed, the company closed the old crossing by a fence, which it has maintained to the present time, and the travel has passed over the bridge and new road, which are now a part of Front street. The bridge has now become unsafe, and the question presented by this record is, whether the obligation to furnish a safe crossing to the public rests upon the railway company or the city.

It is a well settled principle of the common law, resting upon the most obvious considerations of justice, that any person or corporation that cuts through a highway for the benefit of such person or corporation, must furnish to the public a proper crossing, even though acting under a license from the proper authorities. We refer, of course, to cases where the legislative power has not, in terms, relieved the person or company that interferes with a highway, from the necessity of removing any obstructions they may create. In the absence of such an express provision, it is palpable that a railway company is under obligation to leave every highway that it crosses in a safe condition for the use of the public. As illustrating the common law rule, we refer to Queen v. Inhabitants of Ely, 69 E. C. L. 843.

But, independently of the duties imposed upon this respondent by the common law, the...

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