Sanitary Dist. of Chicago v. Pittsburgh

Decision Date14 October 1905
Citation216 Ill. 575,75 N.E. 248
CourtIllinois Supreme Court
PartiesSANITARY DIST. OF CHICAGO v. PITTSBURGH, FT. W. & C. RY. CO. et al.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Condemnation proceedings by the Sanitary District of Chicago against the Pittsburgh, Ft. Wayne & Chicago Railway Company and others. From the judgment, petitioner appeals. Affirmed.James Todd and Eddy, Haley & Wetten (P. C. Haley and Charles H. Pegler, of counsel), for appellant.

Wilson, Moore & McIlvaine, Herrick, Allen, Boyeson & Martin, and Loesch Bros. & Howell, for appellees.

CARTWRIGHT, C. J.

Appellant filed in the circuit court of Cook county its petition for the ascertainment of just compensation to be paid to appellees for that part of blocks 69, 70, 71, and 72, and that part of Monroe street vacated, all in school section 16, township 39, range 14, in the city of Chicago, lying easterly of a certain line beginning at a fixed point in the south line of Madison street and running thence southerly, by the way of other fixed points, to a point in the north line of Van Buren street, as described in the petition, for the purpose of deepening, widening, and improving the Chicago river between the south line of Madison street and the north line of Van Buren street; the eastern boundary of the tract being the center thread of the Chicago river. The Pittsburgh, Ft. Wayne & Chicago Railway Company and its lessees, the Pennsylvania Railroad Company and the Pennsylvania Company, filed their cross-petition, setting forth that the strip of land sought to be taken was a part of a tract of land constituting the passenger and freight station of the Pittsburgh, Ft. Wayne & Chicago Railway Company and its lessees; that said tract was improved with a station, baggage rooms, power houses, freight houses, offices, freight tracks, team tracks, and other like improvements; that it constituted the principal terminal station of the railway systems of the cross-petitioners in the city of Chicago; and that by reason of the taking of the strip to be appropriated by the petitioner the remainder of the property would be greatly damaged. It was agreed that the compensation to be paid for the lands taken and any consequent damage to the remainder should be assessed in one sum. Preliminary to the trial by jury of the amount of compensation and damage, the petitioner moved the court to ascertain and determine that the west bank of the Chicago river was upon a certain line alleged to have been established by an ordinance of the city of Chicago passed on March 16, 1857. The position of petitioner on that motion was that the legal dock line was established by that ordinance, which at some places was west of the actual dock line in the possession of the defendants and as it had existed for many years, and that the defendants should be limited to compensation to that line, except where conveyances to the railroad company limited the easterly boundary to lines west of the dock line and where the railroad company had deeded lands away. Petitioner contended that, so far as the actual dock line in the possession of the defendants was located east of the line described in the ordinance, the defendants had intruded on the bed of the river; that if the defendants caused land to be made in the river outside of the legal line they committed a wrong, and were not entitled to the possession of such made land or compensation therefor. The petitioner also contended that it should not be required to pay for the vacated end of Monroe street described in its petition, on account of certain reservations by the city, in the vacation, of a right to lay and maintain gas and water pipes and sewers therein, and because the vacated premises were to be used for the purposes of a passenger station, and were not so used, but were used for freight and team tracks. The court, after hearing the evidence of the respective parties, found and adjudged that the west boundary line of the river was the line of the existing dock in front of the property; that the defendants had certain rights in Adams and Jackson streets under ordinances and contracts, and had title to the vacated part of Monroe street, subject to the rights of the city of Chicago therein. To the decision of the court on these questions the petitioner excepted. A jury trial followed, resulting in a verdict finding the just compensation for the land taken and damages to the remainder to be $1,389,940. The court overruled petitioner's motion for a new trial, and petitioner excepted and prayed an appeal, which was allowed.

The proceeding before the court as to title was not based upon any issue in the pleadings. The petitioner described the property which it desired to appropriate, lying easterly of the line described in the petition, between Madison street on the north and Van Buren street on the south, and having its east boundary line in the center thread of the Chicago river. As a matter of fact, the easterly part from the dock line to the center of the river was submerged by the waters of a navigable stream and was already subject to the easement of navigation. The statute requires a petition setting forth a description of the property sought to be taken, with the names of the persons interested as owners or otherwise, and if the estate sought to be condemned is a limited one or subject to conditions or restrictions, either in the title or mode of use, or if it is incumbered by some public easement or right, it should be set out in the petition. The averments of the petition as to the nature or extent of the estate or title of the defendants are not binding on the defendants, and upon a proper issue the court may determine such questions; but such averments are binding on the petitioner, and the defendants are not required to establish their title. Peoria & Rock Island Railway Co. v. Bryant, 57 Ill. 473. If a corporation entitled to exercise the right of eminent domain claims that it already has a right to take land, a petition for condemnation is not the proper proceeding to try that question. It was the duty of the petitioner to ascertain the title to the premises before commencing the proceeding, and to name in the petition the owner of the premises, and, if the title was less than a fee simple or subject to an easement, it should have been stated in the petition. Peoria, Pekin & Jacksonville Railroad Co. v. Laurie, 63 Ill. 264. There was no averment on the subject in the petition, and, so far as it was concerned, the defendants were to be regarded as the owners of an unincumbered title. They were in the actual possession of the land to the existing dock line, and had been for many years, and under the petition they were not required to prove title. While only a petition and cross-petition are contemplated by the statute, the record must show some sort of objection, issue, or traverse to justify a decision by the court as to title, and in this case there was nothing of the kind. But although the proceeding was irregular, and not authorized by any rule of practice, the parties joined in it without objection, and offered evidence as to what part of the land was already subject to the easement of navigation and to what line the defendants were legally entitled to occupy. If it may be considered that the defendants waived their right to have the question submitted on proper pleadings, we think the conclusions of the court were correct.

The charter of the city of Chicago in force in 1857 gave the city power to widen and improve the Chicago river, and, inferentially at least, to establish dock lines, and required the council to give notice to the owner of an intention to appropriate land for widening the river. After such notice, commissioners were to be appointed to ascertain and assess the damages and compensation due the owners of land taken and to assess such damages on property benefited by the improvement. On March 16, 1857, an ordinance was passed, which was approved on March 18, 1857, establishing dock lines on each side of the Chicago river from Madison street to Van Buren street. On March 23, 1857, the city clerk was directed to advertise in the corporation newspapers that the common council intended to take and appropriate so much land as was necessary to straighten and widen said river from Madison street to Van Buren street, in accordance with a survey on file in the clerk's office. On April 3, 1857, commissioners were appointed to assess the damages for widening the river from Madison street to Van Buren street, and on April 20th two commissioners were appointed in place of...

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