Sanitary Dist. of Chicago v. Chicago & A.R. Co.

• Decision Date: 07 April 1915
• Docket Number: No. 9760.,9760.
• Citation: 267 Ill. 252,108 N.E. 312
• Court: Illinois Supreme Court
• Parties: SANITARY DIST. OF CHICAGO v. CHICAGO & A. R. CO. et al.

267 Ill. 252

108 N.E. 312

SANITARY DIST. OF CHICAGO

v.CHICAGO & A. R. CO. et al.

No. 9760.

Supreme Court of Illinois.

Feb. 17, 1915.

Rehearing Denied April 7, 1915.

Appeal from Circuit Court, Cook County, Jesse A. Baldwin, Judge.

Condemnation proceeding by the Sanitary District of Chicago against the Chicago & Alton Railroad Company and others. From the judgment, plaintiff appeals. Affirmed.Edmund D. Adcock, James S. Handy, and Oscar H. Olsen, all of Chicago, for appellant.

Winston, Payne, Strawn & Shaw, of Chicago (Silas H. Strawn and Walter H. Jacobs, both of Chicago, of counsel), for appellees.

CARTER, J.

This is an appeal by the Sanitary District of Chicago from the judgment of the circuit court of Cook county in a condemnation proceeding brought by said district against the Chicago & Alton Railroad Company and others, to condemn a right of way and easement for a channel for said district crossing the railroad right of way of said railroad company. The case was tried on a stipulation of facts before the court without a jury, and a judgment was entered in behalf of appellees for $53,476.

Under the authority granted to it by the Legislature, the Sanitary District of Chicago has laid out and established a right of way for a channel extending from a point on the Little Calumet river, near Blue Island, Cook county, Ill., to the main channel of the district at or near Sag. The proposed channel intersects the right of way of the Chicago & Alton Railroad Company near Lambert station, in the same county. The right of way of the district at that point is approximately 200 feet in width, and the record shows that the district intends to construct a channel which at the point of the proposed crossing is 100 feet in width. So constructed, the channel will occupy permanently about that width of the right of way, necessitating the construction of a bridge to carry the railroad tracks over said channel and the elevation of the railroad right of way on each side of the bridge to the grade necessary to allow the crossing of the bridge above said channel. When the channel is completed it will connect Lake Michigan, through the Little Calumet and Grand Calumet rivers, with the main channel of the sanitary district. The Calumet feeder of the Illinois & Michigan Canal extends from the Calumet river, near Blue Island, to the Illinois & Michigan Canal, at or near Sag, and is practically parallel with the proposed Sag channel of the sanitary district. Where the said feeder crosses the Alton right of way the railroad bridge maintained by said railroad is about 300 feet from the point where the Sag channel will cross said railroad right of way. When said sanitary district channel is completed, it will entirely drain the Calumet feeder and the territory tributary thereto, and the feeder thereafter will serve no purpose. This feeder, since its construction, has been considered, in law, as part and parcel of the Illinois & Michigan Canal. Laws 1838-39, p. 181, § 15. Said feeder was not a natural water course, but was artificially constructed previous to the building of the appellee railroad; said railroad building and maintaining at its own expense a railroad bridge over said feeder at this point. The court, in entering its judgment against the appellant, included as the value of the property actually taken and damage to the remainder the following amounts:

+-----------------------------------------------------------------------------+
                ¦Property actually taken                                            ¦$ 100 00 ¦
                +-------------------------------------------------------------------+---------¦
                ¦Cost of construction of bridge over channel to carry two tracks    ¦18,778 00¦
                +-------------------------------------------------------------------+---------¦
                ¦Capitalized cost of maintenance and repair of such bridge          ¦9,163 00 ¦
                +-------------------------------------------------------------------+---------¦
                ¦Cost of raising grade of two existing main tracks on each side of  ¦11,985 00¦
                ¦the bridge                                                         ¦         ¦
                +-------------------------------------------------------------------+---------¦
                ¦Expense of diverting traffic during the period of construction     ¦13,450 00¦
                +-------------------------------------------------------------------+---------¦
                ¦                                                                   ¦$53,476  ¦
                ¦                                                                   ¦00       ¦
                +-----------------------------------------------------------------------------+
                

In the stipulation of facts it is stated:

‘That the proper operation of the Chicago & Alton Railroad Company's railroad between Chicago, Ill., and Joliet, Ill., requires the use by said company of four main tracks across said proposed channel at the point aforesaid,’ etc.

Appellees therefore claim as damages the cost of a bridge for four main tracks and an allowance for the perpetual maintenance and repair of a four-track bridge. The appellee railroad company has only two main tracks constructed and in operation at the present time at this point, and the court refused to allow for the construction and maintenance of a bridge for more than that number. Appellees have filed cross-errors questioning the correctness of this ruling of the court, while appellant insists that under the law the only damage that should have been allowed was the $100 for the property actually taken.

Counsel for appellant contend that this court has held that the Sanitary District of Chicago was organized to preserve health and to protect life (Wilson v. Board of Trustees, 133 Ill. 443, 27 N. E. 203;People v. Nelson, 133 Ill. 565, 27 N. E. 217;Judge v. Bergman, 258 Ill. 246, 101 N. E. 574), and that the construction of this and other channels for carrying out that purpose of the sanitary district is in the interest of the public health, and a regulation under the police power for the purpose of protecting the public health and life of the people, and that therefore, under the authorities in this and other jurisdictions, appellees can only recover for the actual value of the property taken.

[4] Police power has been defined by this court as that inherent plenary power in the state which permits it to prohibit all things hurtful to the welfare, comfort, and safety of society. It ‘is coextensive with self-protection, and is not inaptly termed the ‘law of overruling necessity.” Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71. The extent of this power has never been defined with precision. Indeed, it cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. Pumpelly v. Green Bay Co., 13 Wall. 166,20 L. Ed. 577. It is much easier to perceive and realize the source of this power than to mark its boundaries or prescribe its limits. Commonwealth v. Alger, 7 Cush. (Mass.) 53. Notwithstanding, however, it is very broad and far-reaching, it is not without its restrictions. ‘It cannot be held to sanction the taking of private property for public use without making just compensation therefor, however essential this might be, for the time, to the public health, safety, etc.’ City of Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640. It must have some relation and be adapted to the ends sought to be accomplished. Rights of property will not be permitted to be invaded under the guise of police regulations. Bailey v. People, 190 Ill. 28, 60 N. E. 98,54 L. R. A. 838, 83 Am. St. Rep. 116. Every person is bound to use his property so as not to interfere with the reasonable use and enjoyment of the property of others and not to interfere with the general welfare of the community in which he lives. This last, only, may be regulated by the police power of the state. Whatever restraints the Legislature imposes upon the use and enjoyment of property within the reason and principle of this duty the owner must submit to. ‘It is a regulation, and not a taking; an exercise of police power, and not of eminent domain. But the moment the Legislature passes beyond mere regulation, and attempts to deprive the individual of his property, or of some substantial interest therein, under the pretense of regulation, then the act becomes one of eminent domain.’ 1 Lewis on Eminent Domain (3d Ed.) § 6. Police power and eminent domain are distinct powers of the government. ‘The difference lies neither in the form nor in the purpose of taking, but in the relation which the property affected bears to the danger or evil which is to be provided against. * * * It may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful’ (Freund on Police Power, § 511), or, as Justice Bradley has put it, because ‘the property itself is the cause of the public detriment’ (Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616). The Legislature may determine when the exigency exists for the exercise of the police power, but it is for the courts to determine what are the subjects of the police power and what are reasonable regulations thereunder, and whether there is any real or substantial relation between the avowed objects of the law and the means devised therein for attaining those ends. People v. Steele, 231 Ill. 340, 83 N. E. 236,14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321;City of Belleville v. Turnpike Co., 234 Ill. 428, 84 N. E. 1049,17 L. R. A. (N. S.) 1071.

Counsel for appellant argue that the appellee railroad company accepted its franchise from the state to acquire its, right of way and build and operate its railroad subject to the exercise, at any and all times, by the state, of this police power for the public health, safety, morals, and welfare;that the exercise of this power by the state and the observance of such duty by the railroad company ever exists and continues, and cannot be contracted away. Beyond...