Posinski v. Chicago, M. St. P. & Pac. R. Co.

• Decision Date: 15 April 1941
• Docket Number: No. 26078.,26078.
• Citation: 376 Ill. 346,33 N.E.2d 869
• Court: Illinois Supreme Court
• Parties: POSINSKI et al. v. CHICAGO, M. ST. P. & PAC. R. CO. et al.

376 Ill. 346

33 N.E.2d 869

POSINSKI et al.

v.CHICAGO, M. ST. P. & PAC. R. CO. et al.

No. 26078.

Supreme Court of Illinois.

April 15, 1941.

Suit by Frank Posinski and another against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company and others, to restrain defendants from doing any further work on construction of an underpass at intersection of highway and railroad track, and to require defendants to remove all obstructions which had been placed upon the roadway. Subsequently the director of the department of public works and buildings was made a defendant. From an adverse decree, the defendants appeal.

Reversed.Appeal from Circuit Court, Cook County; S. H. Klarkowski, judge.

John E. Cassidy, Atty. Gen., and M. L. Bluhm and W. L. Hunter, both of Chicago (Jerome F. Dixon, Stephen Fleming, and Ben Schwartz, all of Chicago, of counsel), for appellants.

Urion, Bishop & Sladkey, of Chicago (Howard F. Bishop and Robert F. Dewey, both of Chicago, of counsel), for appellees.

FARTHING, Justice.

On October 25, 1940, the circuit court of Cook county ordered the defendants, the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, the Department of Public Works and Buildings, its director, Charles P. Casey, a district engineer of the department, Kendrick Harger, and W. A. Black, to negotiate with the plaintiffs and agree upon the amount that should be paid for damage to plaintiff's property, caused by the construction of an underpass at the intersection of Waukegan Road and the tracks of the defendant railroad company, in the village of Glenview. If this were not done, or if condemnation proceedings were not instituted within sixty days, the railroad company and the director of the department were ordered to remove the underpass and restore the property to its original condition. Defendants have appealed directly to this court on the ground that a construction of the constitutional provision (section 26 of article 4, Smith-Hurd Stats.) prohibiting suits against the State is involved.

Frank and Josephine Posinski own the land in question situate in the village of Glenview. It has a frontage of 550 feet on the west side of Waukegan Road, which is a part of State highway No. 42-a and runs in a north and south direction. It is of substantially the same elevation as appellees' property and is the only means of ingress to and egress from it. Approximately 200 feet south of appellees' property defendant railroad company's tracks cross Waukegan Road in a northwesterly direction, and the right of way forms the western boundary of the Posinski tract. On May 2, 1934, the Illinois Commerce Commission ordered the railroad company and the Department of Public Works to construct a grade separation at the above crossing because of its dangerous character. Plans for an underpass were approved by the commission and construction was begun. The railroad company moved its tracks to the south of the crossing pending completion of the underpass. Waukegan Road was blocked off for a short distance to the north and to the south of the old crossing, and the excavation of the underpass and ditches was started. The appellees filed their original complaint June 25, 1936. They alleged their property was being damaged by the construction of the underpass, and that they had not been compensated therefor as provided by section 13 of article 2 of our constitution. They prayed that the defendants then named be restrained from doing any further work, and that they be required to remove all obstructions which had been placed upon the roadway. The motion of appellees for a temporary injunction was denied July 19, 1936, and about November of that year the underpass was completed. The construction of the north approach left a slight depression of Waukegan Road in front of appellees' property which amounted to a foot and three quarters at the south end of the land and was but six inches a hundred feet farther north. After the underpass was completed, the railroad company rebuit its tracks over it at an increased elevation of 3 or 3 1/2 feet. From the center of the underpass, the tracks descend at a rate of one-half of one per cent, or 6 inches per hundred feet. In other words, the tracks return to their original elevation at a point approximately 700 feet to the north of the underpass. On October 11, 1937, by leave of court, the complaint was amended, and, for the first time, the director of the Department of Public Works and Buildings was made a defendant, but the complaint was not amended in any other way. On November 15, 1937, the director moved to dismiss the amended complaint because the suit was originally against the Department of Public Works, in other words against the State; that such a suit is prohibited by our constitution; and that he could not, by amendment, be made a party defendant to a suit which was void ab initio. Althoughthe record does not show what was done, this motion was presumably denied for the director filed his answer to the amended complaint July 19, 1938. He alleged the suit could not be maintained because it was one against the State, and also that, at the time this suit was filed, a vast amount of money had already been expended in construction work on the underpass, and that he was not made a party until after the underpass was completed on or about November 1, 1936, at a cost in excess of $250,000. These facts were alleged as showing laches.

The cause was referred to a master on October 11, 1938, and again on June 28, 1940. The master's report was filed October 25, 1940, and in it he found that the appellees had been damaged by the construction of the underpass, and that they were entitled to have it removed unless eminent domain proceedings were instituted within a reasonable time to fix their damages. Exceptions to the masters' report were overruled and a decree was entered October 25, 1940, which ordered all the defendants, within sixty days, to negotiate with the plaintiffs and agree upon their damages, or to file a condemnation suit to determine the amount due plaintiffs. In default of both, the director of the Department of Public Works and the railroad company were ordered to remove the underpass and restore the road to its former condition. This appeal followed.

Appellants contend this is a suit against the State which is prohibited by section 26 of article 4 of our constitution. That section declares the State of Illinois shall never be made a party defendant in any court of law or equity....